The Korea Export Insurance Corporation (Law Firm Square, Attorneys Lee Dong-in, Counsel for plaintiff-appellant)

China Bank Co., Ltd. (Attorney Kim Jong-chul, Counsel for the plaintiff-appellant)

September 12, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 875,870.02 US dollars and 6% interest per annum from February 22, 2008 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

(a) Issuance of a credit;

1) On January 5, 2008, Nonparty 2 entered into an import contract with Nonparty 1 Company to import the amount of 22,500 tons of coal for Indonesia (indonesian Stam Coal) from Indonesia Co., Ltd., and agreed to pay the purchase price in accordance with the credit.

2) Accordingly, on January 18, 2008, upon the request of Nonparty 2 to open a limited company, Defendant Bank’s broad-dong branch issued the following irrevocable letters of credit with the content that Nonparty 1 is the beneficiary.

○ 40E Applicable Rules: the latest UCP LTSSVON (UCP LTSTV)

○ 31D Validity Period and Place: 28 February 28, 2008 and Magdong Branch Counters of Defendant Bank

○ 32B Currency: US$ 840,000

○ 39A excessive or deficient: 10/10

○○ 41D: 100% of the invoice amount paid by Defendant bank’s optical East Branch (AVAILABLE WITH. BY.: BNK OFCHIN LTD., GUNDGNNNCH 100 PERCEOE EXNNNNNNCH 20% of the invoice amount by Defendant bank’s optical East Branch

○ 4E Port/Airport: Indonesia knifia

○ 44F Port of Loading/Airport: China Mahaba Sari Port

○ 4C Final Loading Date: February 13, 2008

○ 45A Details of goods/services:

US$ 40 per ton, of coal for the Indonesia Industrial Agency 21,00 tons (METIC TN), US$ 40 per ton

US$ 840,000 in total

FOB Round Director-General of the Republic of Korea

Details:

본문내 포함된 표 파라미터 실험 허용범위 벌금 보너스 거절 범위 총수분(수취기준) 최고 15% ？ ？ 18% 이상 고유수분(건조기준) 최고 8% ？ ？ ？ 회분함량(건조기준) 최고 18% 18% 이상 ？ 19% 이상 휘발성물질(건조기준) 최소 36% ？ ？ ？ 고정탄소(건조기준) ？ ？ ？ ？ 총유황(건조기준) 최고 1.0% ？ ？ 1.1% 이상 총발열량(건조기준) 5800 KCAL/KG 5800 이하 5800 이상 5600 이하 분쇄도 최소 45 ？ ？ 38 이하 크기(SIZE) 0-100 MM 100% ？ ？ ？

○ 46A Required documents:

1. Three originals and three copies of the commercial invoice signed with the description of this credit number and contract number (the copy shall not be considered as the original)

2. Three copies of the bill of lading issued by the Hong Kong-type shipping company (HONG KONG ZHONG XIN SHIPING HOLDD) and three copies of the bill of lading issued by the order-type shipment of the blank endorsement (FUL SET) and non-negotiable copies of the bill of lading issued by the Hong Kong-type shipping company.

3. A certificate of beneficiary attesting that a copy of the document specified within two business days from the date of shipment has been sent to the applicant by facsimile.

4. A certificate of reduction issued by an independent appraiser (PT CARUIN).

(CERTIFICT OF DDR CRVER)

5. A certificate of origin issued by a chamber of commerce and industry or an agency of the same level;

6. Certificates of sampling and analysis issued by an independent appraiser (PT CARUIN);

7. A certificate of acceptance/acceptance of the beneficiary on which the beneficiary's acceptance or refusal to accept the amendment is indicated, confirming that the beneficiary's acceptance or refusal to accept the amendment is made. This certificate is not required unless the conditions of this credit are modified.

8. Surplus for all documents; and

○ 48 Document Presentation Period: Shipping documents must be presented within 15 days from the date of issuance of the transport documents and within the effective period of this Credit.

○ 78 Payment / Acceptance / Purchase Bank:

A bank undertakes to settle the documents set forth above, consistent with the terms and conditions of the Credit, if presented (WE HHEE YBY Y NAE DoUCEE DoUCEENSIN WIT COMPGE WIT L/CFICE).

3) After that, on January 23, 2008, the Defendant Minedong Branch changed the negotiating bank to all banks (NYKININ R.O.O.O.S. REN) of the Republic of Korea (NY 41D) and subsequently partially modified the required documents of the above Credit on February 5, 2008 (the “two business days” referred to in paragraph 3 of the above 46A).

B. Conclusion of export insurance contracts

On the other hand, on February 6, 2008, the Plaintiff established with public funds for the purpose of contributing to the development of the national economy by promoting the export of domestic exporters through export insurance business, etc. entered into a short-term export insurance with the effect that the Plaintiff shall pay the insurance amount equivalent to 95% of the export price (the export price) to the non-party 1 corporation in the event that the importing company did not pay the export price without justifiable grounds or the issuing bank did not pay the letter of credit amount without justifiable grounds.

C. Refusal to pay the letter of credit

1) On February 11, 2008, the non-party 1 corporation, upon receipt of the notification of the issuance and amendment of the letter of credit of this case through the non-party 1 corporation's sexual branch of the Korea Exchange Bank (hereinafter "Korea Exchange Bank"), requested the Korea Exchange Bank to negotiate shipping documents based on the letter of credit of this case with documents such as commercial invoice and bill of lading, etc. In response, the Korea Exchange Bank paid USD 875,870.02 to the non-party 1 corporation and purchased them.

2) After that, the foreign exchange bank presented the shipping documents received from Nonparty 1 Company and demanded the Defendant to redeem the letter of credit of this case (hereinafter “the first demand”), but the Defendant rejected payment on February 20, 2008 on the ground of the inconsistency between the two products (hereinafter “the first refusal to pay”).

3) Accordingly, on February 20, 2008, the foreign exchange bank received shipping documents, etc. that corrected the defective matters pointed out at the time of the first refusal of payment from the non-party 1 corporation, and presented them to the defendant on February 21, 2008, and demanded re-payment of the letter of credit of this case (hereinafter "the second demand for payment"), but the defendant on February 29, 2008, stated the analysis of the size of the goods on the commercial invoice and the packing invoice differently from the letter of credit (INVOICE ND PAP PACS SHS COMGSSSS: 0-5M: 0-55M: 0-5.21 p. 75.21T. 'DIFFEROM L/C', and the defendant did not make payment on the letter of credit of this case (hereinafter "the second demand for payment"), and notwithstanding the demand again made by the foreign exchange bank.

(d) Payment of insurance money;

1) When a foreign exchange bank was unable to receive a letter of credit from the Defendant, it demanded the non-party 1 corporation to return the purchase price, and the non-party 1 corporation returned USD 875,870.02 to the foreign exchange bank.

2) In addition, on March 4, 2008, the non-party 1 corporation notified the Plaintiff that the insurance accident under the export insurance contract of this case was issued, and requested the Plaintiff to pay the insurance proceeds on April 7, 2008. On April 10, 2008, the Plaintiff paid US$ 832,076.51 to the non-party 1 corporation on April 10, 2008.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 11 (including branch numbers in case of additional number), the purport of whole pleadings

2. The party's assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

The defendant rejected the second demand for payment on the letter of credit of the foreign exchange bank on the ground that the contents of the analysis of the size of the goods in the commercial invoice and packing invoice are different from the contents of the letter of credit. ① According to the letter of credit of this case, with respect to the total number of goods in the statement of goods, the amount of installments, the collective situation, the total amount of heat, and the level of crushing, it is stated that the payment may be refused if it goes beyond a certain standard limit by prescribing the scope of rejection. On the other hand, the size of the goods stated in the commercial invoice and packing invoice does not specify the scope of rejection. Therefore, even if the size of the goods in the commercial invoice and packing invoice is different from the contents of the letter of credit, it is reasonable to deem that the defendant cannot refuse to pay on the letter of credit on the ground that they are different from that of the letter of credit of commercial invoice and packing invoice, and even if not, on the other hand, the letter of credit of this case stated 0-50M:75.21% on the first demand for payment.

Therefore, despite the Defendant’s duty to pay the letter of credit of this case to the foreign exchange bank without any justifiable reason, the Defendant did not pay the letter of credit of this case to the foreign exchange bank, thereby returning the purchase price of shipping documents to the foreign exchange bank and recovering the letter of credit of this case. The Plaintiff paid the insurance money to the non-party 1 corporation and received the claim for the letter of credit of this case from the non-party 1 corporation pursuant to the export insurance contract of this case. Thus, the Defendant, the issuing bank of the letter of credit, is liable to pay

2) The defendant's assertion

① The inconsistency between the description of the goods stated in the commercial invoice and the packing invoice of this case and the letter of credit is apparent on its face, and ② such inconsistency is a new defect that did not exist at the time of the first refusal of payment, and thus, the Defendant may refuse to pay the letter of credit on its ground.

B. Determination

1) Uniform Customs and Practice for Documentary Credits applicable to the instant case

On the other hand, this case’s L/C provides that “The most recent UCPSVVON applies” as seen earlier. Thus, the legal relationship with this case’s L/C is governed by the Uniform Customs and Practice for Documentary Credits and Practice for Documentary Credits and Practice for Documentary Credits (UCPS 600, hereinafter “Rules for Documentary Credits”) which came into force at the time when the L/C of this case was issued. Thus, the legal relationship with this case’s L/C of this case is governed by the Uniform Customs and Practice for Documentary Credits and Practice for Documentary Credits (UCPS 600, hereinafter “Rules for Documentary Credits”).

2) Determination as to the legitimacy of the Defendant’s second refusal of payment

First of all, Article 18(3) of the Uniform Customs and Practice for Documentary Credits provides that "the description of goods, services or obligations on the commercial invoice shall be identical to that on the letter of credit." Article 14(e) provides that "the 5th 3th Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doctrine Doc." The 5th Doctrine Doctrine Doctrine Doctrine is not contrary to the description on the letter of credit."

나아가, 피고가 1차 지급거절시에 지적하지 아니한 위 하자를 2차 지급요구에 대한 지급거절 사유로 삼을 수 있는지 여부에 관하여 살피건대, 신용장통일규칙 제16조 c항은 ‘지정에 따라 행동하는 지정은행, 확인은행이 있는 경우의 확인은행 또는 개설은행이 결제 또는 매입을 거절하기로 결정하는 때에는, 제시자에게 그러한 취지로 한번에 통지하여야 한다(When a nominated bank acting on its nomination, a confirming bank, if any, or the issuing bank decides to refuse to honour or negotiate, it must give a single notice to that effect to the presenter)'고 규정하고 있고 또한 같은 조 f항은 ’개설은행 또는 확인은행이 이 조항의 규정에 따라 행동하지 못하면, 그 은행은 서류에 대한 일치하는 제시가 아니라는 주장을 할 수 없다(If an issuing bank or a confirming bank fails to act in accordance with the provisions of this article, if shall be precluded from claiming that the documents do not constitute a complying presentation)'고 규정하고 있으므로, 개설은행인 피고가 신용장과 선적서류의 불일치 등의 하자를 이유로 신용장 대금의 지급을 거절할 경우 1회에 모든 하자를 통지하여야 하고, 차후에 다른 하자를 이유로 하여 신용장대금의 지급을 거절할 수는 없는 것이 원칙이다. 그러나 개설은행 등의 이러한 일괄하자통지의무는 통지 당시 존재하던 하자에 대해서만 적용되는 것이지 그 후에 새롭게 추가로 발생한 하자에 대해서는 적용되지 않는다고 할 것이다. 위 인정사실에 의하면, 이 사건의 경우 피고는 1차 지급요구시 제시된 선적서류 중 상업송장에 물품명세 자체가 기재되지 않았기 때문에 이를 이유로 신용장대금의 지급을 거절하였고, 이에 외환은행이 상업송장 및 포장명세서에 물품명세를 보충하여 2차 지급요구를 하였는데, 이번에는 그 보충된 상업송장 및 포장명세서의 물품명세에 관한 서류심사 결과 위와 같이 그 물품명세 중 물품의 크기에 관한 기재가 신용장의 그것과 불일치한 것이 발견되어 재차 신용장대금의 지급을 거절한 것인바, 외환은행의 2차 지급요구에 대하여 피고가 지적한 이러한 불일치 하자는 1차 지급거절시에는 존재하지 않았던 새로운 하자에 해당한다고 할 것이므로 피고는 이를 이유로 또다시 신용장 대금의 지급을 거절할 수 있고, 이는 1차 지급요구시 제시된 서류 중 물품분석증명서에 그와 같이 신용장의 물품명세와 불일치하는 2차 지급요구시 보충된 상업송장의 물품명세와 동일한 기재가 있었다고 하여 달리 볼 것은 아니다(그와 같은 사정은 2차 지급요구에 대하여 피고가 물품분석증명서의 물품명세와 신용장의 그것이 불일치한다는 등 물품분석증명서 자체에 관하여 더 이상 불일치의 주장을 할 수 없는 사유가 될 수 있을 뿐이다).

3) Sub-decisions

Therefore, the defendant's refusal to pay a letter of credit on the second demand by the foreign exchange bank is justifiable. Therefore, the plaintiff's above assertion on a different premise is without merit without further review.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Wil (Presiding Judge) (Presiding Justice)