[1] The meaning of independent bank guarantee and its legal characteristics

[2] Whether a bank that issued a certificate of indirect guarantee to a beneficiary during an independent bank guarantee transaction (the guarantor of the first letter of guarantee) may exercise the right to indemnity against the issuing bank of the certificate of indemnity (negative) where the beneficiary knew or could have known that the beneficiary's claim for reimbursement was not satisfied (negative)

[3]A court applying supplementary provisions in case of conflict of laws and regulations applicable to a case, or where it is impossible to verify the contents due to lack of foreign laws and regulations or lack of materials on its existence

[4] The case holding that, under the independent bank guarantee of Saudi Arabia's relevant laws and regulations as the governing law, the presentation of documents which clearly state the debtor's default on obligations does not meet the requirements for requesting the payment of security deposit, although there are no relevant laws and regulations of Saudi Arabia, but is not the requirements for claiming the payment of security deposit on the basis of the decision made by the Financial Dispute Mediation Committee of Saudi Arabia

[5] In the case of indirect bank guarantee among the independent bank guarantee, where the guarantor of the first letter of guarantee claims the guarantor of the second letter of guarantee to pay the deposit, whether the sureties of the second letter of guarantee is invoked the legal principles of the Uniform Customs and Practice for Documentary Credits applicable to the guaranteed letter of credit in examining whether the claim satisfies the requirements within a reasonable period (affirmative)

[6] In an independent bank guarantee, in case where a beneficiary's claim constitutes an abuse of rights, whether a guarantor may refuse to pay a security deposit (affirmative), and whether a guarantor has the right to claim a refusal of payment of security deposit against a guarantee bank (affirmative)

[1] In relation to a principal obligation, not a ordinary guarantee with infinite nature, but a principal obligor (a client) and a creditor (beneficiary) are independent of the underlying relationship, and only if there is a beneficiary's claim without defense against the beneficiary due to a cause based on the underlying relationship, so-called independent bank guarantee, the guarantor, at the request of the beneficiary, shall be liable to pay the amount specified in the relevant guarantee, regardless of whether the client is liable for the non-performance of obligation in relation to the beneficiary. In this regard, the bank guarantee shall be separated from the underlying relationship between the beneficiary and the client, regardless of whether the applicant is liable for the non-performance of obligation.

[2] In an independent bank guarantee transaction, the bank shall strictly examine whether the beneficiary claims that are consistent with the terms and conditions of the guarantee in accordance with international standard banking practice (inter alia, the bank that issued the guarantee certificate to the beneficiary in the case of indirect guarantee shall comply with the beneficiary's request unless the beneficiary clearly knew or could have known that the claim did not meet the above requirements as a result of the examination of the beneficiary's request for payment based on the guarantee certificate in accordance with the above criteria. If the beneficiary's request was known or could have known that it did not meet the above requirements, it is reasonable to view that the bank cannot request the issuing bank of the certificate of indemnity in accordance with the second guarantee certificate if it responded to the beneficiary's request without refusal despite being aware or known that it did not meet the above requirements.

[3]In determining the contents and interpreting the meaning of the foreign laws to be applied to cases of conflict of interest, the foreign laws should be interpreted and applied in accordance with the actual meaning, contents, and the foreign laws should be interpreted and applied in their own country. If there is a defect in the foreign laws to be applied in the course of the lawsuit or the data on its existence cannot be submitted, the court shall follow the foreign customary law in accordance with the majority principle of the civil law concerning the court (court), and if it is impossible to confirm the contents of the customary law, the foreign customary law shall be judged by the cooking. If possible, the contents of the cooking shall be supplemented and inferred by the previous and systematic order of the foreign law in order to take the method nearest to the resolution to be originally applied.

[4] The case holding that, under the independent bank guarantee of Saudi Arabia's relevant laws and regulations stipulated as the governing law, where the documents clearly stating the debtor's default are not the requirements for requesting the payment of a security deposit, there are no relevant laws and regulations of Saudi Arabia, but if the Financial Dispute Mediation Committee of Saudi Arabia did not present the documents specifying the debtor's default, it is reasonable to presume that the above committee has made a lawful decision in accordance with its relevant laws and regulations, and therefore, it is not the requirements for claiming the payment of a security deposit for the presentation of the documents clearly stating the debtor's default.

[5] In the case of transactions surrounding an independent bank guarantee in light of international standard bank practice, it is reasonable to apply the standard and legal principles similar to that of the guaranteed credit. In the case of indirect guarantee, among the types of the second guarantee, where the guarantor of the first guarantee claims the deposit of the second guarantee upon the request of the beneficiary on the first guarantee form, the guarantor of the second guarantee form shall be notified of the fact that the requirements are met within a reasonable time in light of international banking practice, and if the period is not appropriate, it shall be required to supplement the defects if there is a defect and if it is of a nature to cure the defect, it shall be required to notify the bank that it refuses to pay without delay after specifying the defect. If such notification is not possible, it shall be deemed reasonable to deem that the guarantor of the first guarantee form is not able to refuse to present the first guarantee form on the grounds of such defect.

[6] In the case of independent bank guarantee, the principle of trust and good faith or the principle of prohibition of abuse of rights cannot be excluded even in the case of independent bank guarantee. Thus, when it is objectively apparent that the beneficiary makes a request to the guarantor by abusing the abstractness or unmanned character of the above bank guarantee even though the beneficiary does not have any right to the applicant, it constitutes an abuse of rights. In such a case, the guarantor may refuse the payment of the deposit upon the beneficiary's request. In this case, the guarantee contract between the client and the guarantor is not different from the delegation contract under the Civil Act, the guarantee contract for the issuance of bank guarantee between the client and the guarantor is not different from the delegation contract under the above civil law, and the guarantor, as the agent, bears the duty to protect the client's interest in the relevant guarantee contract. Accordingly, when it is objectively apparent that the beneficiary's request for payment of the deposit is abuse of rights, the guarantor bears the duty to refuse payment at least in relation to the applicant, and on the other hand, the client, as the guarantor, also constitutes abuse of rights.

[1] Articles 428 and 430 of the Civil Code / [2] Articles 428 and 441 of the Civil Code / [3] Article 1 of the Civil Code / [4] Articles 1, 428 of the Civil Code, and Article 9 of the Conflict of Laws / [5] Article 14 of the Uniform Customs and Practice for Documentary Credits / [6] Articles 2, 428, and 680 of the Civil Code

[1] [6] Supreme Court Decision 93Da43873 delivered on December 9, 1994 (Gong1995Sang, 437) / [3] Supreme Court Decision 98Da35037 delivered on June 9, 200 (Gong200Ha, 1593)

Albay Lbling Anck Investment Co., Ltd. (Attorneys Choi Jong-soo et al., Counsel for the plaintiff-appellant)

Korea Exchange Bank Co., Ltd. (Law Firm New century, Attorneys Director Iron et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 200Na14477 decided May 1, 200

Seoul District Court Decision 99Da19945 delivered on January 14, 2000

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 2.85 million US dollars with 6% per annum from July 19, 1998 to the delivery date of a copy of the complaint of this case from July 19, 1998 and 25% per annum from the next day to the full payment date.

2. Purport of appeal

The judgment of the court below is revoked and the plaintiff's claim is dismissed.

1. Basic facts

The following facts are either in dispute between the parties, or in full view of the whole purport of the pleadings, each of the statements in Gap evidence 1-1-6, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 3-1 to Eul evidence 7.

A. On December 18, 191, the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor joining the Defendant”) entered into a contract with the Intervenor joining the Defendant to supply the above Arabian Pipe Picom (hereinafter referred to as “Arabian Pipe”) with the above Arabian Pipe Co., Ltd. (hereinafter referred to as “Arabian Pipe”) to the above Arape 6” through which he produces steel pipes from the above Arape 20”. The Intervenor is obliged to design, manufacture, install, and trial operation of the above equipment; the Intervenor bears the cost of KRW 2850,00,000 for the payment period; the cost of the delivery is completed within 20,000 U.S. dollars; the date of completion of the operation of the operation; the date of completion of the operation of the operation of the operation is divided into three parts of the final test, and the date of completion of the final test is specified in the contract.

(b)In the instant contract, upon the request of the Intervenor to guarantee the warranty issued by the bank in the country of the assisting intervenor under the pretext of the warranty against defects, the United States dollars 2850,000 U.S. dollars 10,000 U.S. dollars 10,000 U.S. dollars shall be paid to the auxiliary intervenor upon the issuance of the said warranty.

C.On December 5, 1992, the United States Petroleum Association (API, U.S. Petroleum Companies) and Spanco (ARAMCO, and Spand Oil Companies) demanded the supplementary intervenor to pass an inspection of the API produced in the above equipment, as well as to issue the said guarantee certificate required in the contract in this case to the Plaintiff as the beneficiary of the AP pipe, and upon the Plaintiff’s performance of the obligations under the above guarantee certificate, the Defendant requested the Plaintiff to change the said defect guarantee certificate in the form of payment, and the supplementary intervenor accepted the said request.

D. On December 15, 1995, the defendant requested the plaintiff to issue an advance payment guarantee (hereinafter referred to as "the first guarantee certificate") valid for one year from January 1, 1996 of US$ 2850,000 for an Amipe, and requested the plaintiff to issue an advance payment guarantee (hereinafter referred to as "the first guarantee certificate"). In the event that the plaintiff bears the responsibility under the above guarantee certificate, the defendant issued the exemption guarantee certificate (hereinafter referred to as "the second guarantee certificate") that the defendant pays it, and the plaintiff's first guarantee certificate should be issued in the following forms.

- The type of primary guarantee –

(1)us shall guarantee that, without any objection to the Agrope, an amount not exceeding $2850,000 of the total contractor shall be paid to the Agrope in the amount not exceeding $2850,000.

(2)Once there is an initial written notice of the intention that an intervenor will not supply, install, operate on a trial basis, post-processing facilities, and testing facilities within the effective period of this guarantee to the effect that the United Pipe will not produce or will not pass through the inspection of the ADR/API" in accordance with the provisions of the API X-70 and the ARACO, Korea will offer an unconditional guarantee for the payment of the amount claimed by you within the limit of the above amount.

(3) The term of validity of this letter of guarantee is until December 31, 1996, and any dispute on the interpretation of this letter of guarantee shall be governed by the provisions of the letter of guarantee No. 16/67 of the Regulation No. 16/67 announced in particular from the Ministry of Finance and Economy on February 4, 1408, in accordance with the laws and regulations of the Kingdom of Saudi Arabia.

(e) On December 24, 1995, the Plaintiff issued a first guarantee of the same content as the above request to the beneficiary of the United Pipe.

F. At the beginning of December 1996, the he requested the Plaintiff to extend the term of validity of the first guarantee until December 31, 1997. On December 9, 1996, the Plaintiff requested the Defendant to extend the term of validity of the second guarantee letter to the Defendant on January 15, 1998, for the extension of the term of validity of the second guarantee letter to the Defendant on December 24, 1996. However, the Defendant did not respond to the request.

G. On December 24, 1996, if the Plaintiff does not confirm the extension of the term of validity of the first guarantee until December 28, 1996, the Plaintiff sent to the Plaintiff a written statement (paor ex officio) that considers this letter as an official claim under the said guarantee and that payment of US$ 2850,000 to the Plaintiff was made. On December 26, 1996, the Plaintiff contacted with the Intervenor by December 31, 1997, and requested that the term of validity of the first guarantee be extended by no later than December 15, 1998, and if the Plaintiff does not confirm the extension of the term of validity of the second guarantee until December 28, 196, the Defendant deemed the first guarantee to have paid the first guarantee amount to the Plaintiff an official request for the payment of US$ 285,000,000 to the Plaintiff.

H. On January 3, 1997, the Defendant did not respond to the foregoing by December 28, 1996, and sought an extension from the Plaintiff on January 15, 1997, and the Plaintiff wanted to obtain an extension on the ground of EPIX-70, and the Intervenor fulfilled all the obligations under the instant contract. However, even though the Defendant failed to produce a product under APIX-70 specifications, it was due to the fact that an API X-70 specifications did not object to the order from the seller and the materials that could have produced were not supplied to the Intervenor, the Defendant sent a reply to the effect that the Intervenor is not the responsibility of the Intervenor.

I. Since the Plaintiff did not pay the above amount, the Plaintiff filed a lawsuit against the Plaintiff with the Financial Dispute Mediation Committee in the Kingdom of Saudi Arabia, and the Plaintiff argued to the effect that the claim for the deposit of the Unmanned was in violation of the form set out in the first letter of guarantee and the supplementary intervenor did not default on the obligation. However, on January 1, 1998, the said Committee decided that the Plaintiff shall pay the above amount to the UDR, and on July 19, 1998, the Plaintiff paid US$ 2850,000 to the UDR.

2. The parties' assertion

A. The plaintiff asserts that the plaintiff has a duty to pay the above security deposit to the Emipe in accordance with the first letter of guarantee, and the defendant is obligated to pay the money to the plaintiff in accordance with the second letter of guarantee.

B. Accordingly, according to the above first guarantee letter, the defendant or the supplementary intervenor (hereinafter referred to as the "defendants") is liable to pay the above security deposit to the plaintiff when he notified the plaintiff in writing specifying the details of the failure of the supplementary intervenor to pay the above security deposit. The plaintiff did not notify the plaintiff of the details of the failure to pay the supplementary intervenor. Thus, the defendant did not be liable to pay the above security deposit to the plaintiff. The defendant made a provisional disposition to the effect that the supplementary intervenor made a claim for the security deposit based on the first guarantee letter even though the supplementary intervenor fully performed the obligation under the contract of this case to the Acepe, which cannot be allowed by the claim based on the fraud or the claim for abuse of rights. Accordingly, the plaintiff is not liable to pay the above security deposit to the Acepe. Thus, the defendant does not respond to the plaintiff's claim, and the court made a provisional disposition to the effect that the above security deposit is not paid to the defendant.

3. Determination

A. Legal nature and form of the instant guarantee certificate

(1)In light of the above facts, the above 1 and 2 guarantees are clearly stated in the following facts: (a) when the United Pipe, the beneficiary, who is the beneficiary, has failed to meet any of the terms and conditions of the contract with the United Pipe, the guarantor, immediately pay the deposit; and (b) the defendant will guarantee the exercise of the right to indemnity in the case of the payment by the plaintiff, at the request of the plaintiff in accordance with the United Pipe; and (c) the guarantor's duty to pay is not against any reason for which the nature of the guarantor's duty to pay can be asserted. Therefore, this is not an ordinary guarantee in relation to the principal obligation, independent of the cause relationship between the principal debtor and the creditor, and only if the beneficiary so requests the beneficiary without setting up against the beneficiary, the guarantor's duty to pay the non-conditioned bank guarantee shall be paid to the beneficiary in accordance with the so-called independent bank guarantee which causes the failure of the guarantor's duty to pay. (d) At the request of the beneficiary, the guarantor and the beneficiary's duty to pay the beneficiary's 97.3.

(ii)Such bank guarantees may, at the request of the guarantor, directly make guarantees as above to the beneficiary (so-called direct guarantees), and if the guarantor has requested guarantees to the bank (the first bank), then the first bank again requests the beneficiary to the second bank (the bank in the country of the beneficiary) and if the first bank pays to the second bank (the bank in the country of the beneficiary) it guarantees the exercise of the right of reimbursement (so-called indirect guarantees or reverse guarantees), and in this case it constitutes such indirect guarantees.

(b)the obligations and limitations of the Bank in its independent bank guarantee;

In examining the guarantee of an independent bank guarantee transaction, the bank shall strictly examine whether the beneficiary claims are in compliance with the conditions of the guarantee in accordance with international standard banking practice (inter alia, a review report). In the case of indirect guarantee such as this case, the bank that issued a guarantee to the beneficiary (the guarantor of the first guarantee of this case) must comply with the beneficiary's request, unless the beneficiary clearly knew or could have known that the request did not meet the above requirements as a result of the examination in accordance with the above criteria. If the beneficiary's request was not known or could have known that it did not meet the above requirements and the beneficiary's request was rejected, it is reasonable to view that the bank cannot make a claim against the issuing bank of the guarantee of indemnity such as the defendant pursuant to the second guarantee.

(c) Whether the presentation of documents indicating the non-performance of obligations constitutes the requirements for requesting the payment of the security deposit of this case;

(1) Applicable law

As seen in the above facts, the governing law of the first guarantee certificate in this case is the law of the Kingdom of Saudi Arabia, and in particular, it is based on the provision of the letter of guarantee No. 16/67 of the Ministry of Finance and Economy of the above Kingdom of Saudi Arabia No. 1408, Feb. 4, 1408. According to the above letter of guarantee provision of Saudi Arabia, in the case of independent bank guarantee like this case, it is not clear whether the obligor's notice of default is necessary in principle and whether it is the requirement for payment request (other relevant laws and regulations of Saudi Arabia do not have any records).

Furthermore, in the case of this case, the above letter of guarantee does not provide for "the first written notice according to the absolute judgment ............." on the basis of the terms and conditions of the letter of guarantee that contains the debtor's default, but the creditor's claim based on the letter of guarantee constitutes the type of bank guarantee that is legitimate, and there is no other relevant data about this issue.

In such a case, the foreign law should be interpreted and applied in accordance with the meaning and content of the foreign law which is actually interpreted and applied in its country of origin. If foreign law applicable in the course of the lawsuit is defective or data on its existence is not submitted, and if it is impossible to confirm the contents of the foreign customary law, it shall be decided in accordance with the general principles of the civil law concerning the court (court), and if it is impossible to confirm the contents of the foreign customary law, it shall be done in accordance with the cooking. If possible, the contents of the cooking shall be supplemented by the overall and systematic order of the foreign law in order to take the most close solution to the original applicable foreign law (see Supreme Court Decision 98Da35037 delivered on June 9, 200). In such sense, it is necessary to determine the existence of the foreign customary law in light of the overall legal system of Saudi Arabia (see Supreme Court Decision 200Ha, 1593 delivered on June 9, 200).

(2) The decision of the Financial Dispute Mediation Committee of Saudi Arabia

(a)With respect to whether the presentation of documents indicating the non-performance of obligations constitutes the requirement for the claim for the first security deposit of this case, the decision of the Financial Dispute Mediation Committee of Saudi Arabia (based on the English translations of evidence No. 7 B) on the claim for security deposit between the Pipe and the Plaintiff is as follows:

“The instant letter of guarantee is absolute and unconditional, and the first written notice was presented in accordance with the beneficiary’s absolute discretion, and thus, the Defendant Company’s assertion that the instant claim for payment did not comply with the requirements of the letter of guarantee is unreasonably emphasizing on the form of the letter of guarantee. In the instant letter of guarantee, the expression of such obligation is merely merely an explanation of the type of the letter of guarantee to facilitate the implementation, and it shall not be considered as a document to be presented at the time of the terms or conditions for the request for payment or the request for payment.” (b)

(b)In other words, the Financial Dispute Mediation Committee of Saudi Arabia has interpreted as a negative interpretation as to whether the presentation of a document specifying the debtor's default upon a request for the payment based on the first guarantee of this case constitutes a requirement for the presentation of a document specifying the debtor's default, and ordered the plaintiff bank to pay on the Amipe in an unconditional manner.

(c)In full view of each description of evidence A to 5 to 7 and 9, the Financial Dispute Mediation Committee of Saudi Arabia established under the jurisdiction of the Financial Services Commission of Saudi Arabia in accordance with Rule 729/8 of July 10, 1407 (H) and has exclusive jurisdiction over financial disputes between financial institutions and their customers in the said Kingdom, or between financial institutions and their customers, with a view to mediating disputes with financial institutions and their customers within the said Kingdom, the decision shall have judicial effect and executory power, as in the judgment of the court, as in the judgment of the court, can be found to be final and binding on the parties, as well as as as in the judgment of the court, Eul shall not believe that each description of evidence A to 6, and the statement of evidence A to 3 shall not interfere with the above recognition.

(d)However, as seen above, insofar as there is no evidence as to whether the presentation of a document specifying the debtor's default in the case of the instant guarantee certificate under the relevant laws and regulations of Saudi Arabia, it is reasonable to deem that the Saudi Arabia Financial Dispute Mediation Committee, which has the ultimate authority to determine the financial dispute as above, has interpreted the language of the said guarantee certificate lawfully in accordance with its own relevant laws and regulations.

(3) Accordingly, according to the laws and regulations of Saudi Arabia, the governing law of the first guarantee of this case, the claim for a pipeline based on the beneficiary's first guarantee of this case cannot be deemed as the requirement for the claim for the payment of the deposit, as pointed out by the defendant, and further, even if the plaintiff failed to meet the requirements in light of the laws and regulations of Saudi Arabia and international standard bank practices of the Republic of Korea, even if the claim based on the first guarantee of Saudi Arabia did not meet the requirements, in the independent bank guarantee transaction of this case with respect to the guarantee of this case, it cannot be deemed as a case where the beneficiary's request for payment based on the beneficiary's guarantee was clearly known, or could have clearly known, that the beneficiary's request for payment based on the beneficiary's guarantee did not meet the requirements for payment. Accordingly, the defendant's argument that the defendant did not accept the payment of the plaintiff with the knowledge that he did not meet the requirements for payment.

(4) Ghana, in light of international standard bank practices, it is reasonable to apply standards and legal principles similar to those of the Guarantee Credit in the case of transactions surrounding an independent bank guarantee such as this case. In the case of an indirect guarantee of a bank, in the case of an indirect guarantee of a bank, the guarantor of the Second Guarantee Certificate shall, at the request of the beneficiary under the first Guarantee Form, notify the guarantor of the Second Guarantee Form (the defendant in this case), and if the period determined and notified by the guarantor of the First Guarantee Form (the plaintiff in this case) or the period thereof is not reasonable, the issuing bank shall be deemed to refuse to pay without delay if the defects are examined within a reasonable period of time in light of international banking practices, and if such defects are of such nature as can be cured, the issuing bank shall be deemed to have rejected such request for the Second Guarantee Form (the plaintiff in this case) for reasons that the First Guarantee Form (the plaintiff in this case) would not have been able to present such defects. If it is impossible to do so, it shall be deemed that it would be reasonable to refuse to issue the 940th Uniform Rules (the Uniform Rules).

In the case of this case, as seen in the above facts, the defendant would like to know from the plaintiff on December 26, 1996 that payor extend's request was received, and no response was made until December 28, 1996, which was the time limit set by the plaintiff, to the plaintiff on January 3, 1997, as the time limit set by the plaintiff, that the plaintiff wants to extend the term for the reasons of Acepeson. The supplementary intervenor provided a reply to the plaintiff on January 15, 1997. The supplementary intervenor fulfilled all the obligations under the contract of this case, and the non-performance part was not the supplementary intervenor's responsibility, as argued in the lawsuit of this case, it is recognized that the document stating the debtor's non-performance as the requirements for the claim for payment of bank guarantee was not presented, and therefore, it is reasonable to deem that the defect that the defendant failed to notify the plaintiff in the course of the claim for payment, and therefore, the above defendant's assertion is without merit.

(d) independent bank guarantee and fraudulent claims or abuse of rights; and

(1) However, in the case of independent bank guarantee, the application of the principle of trust and good faith or the principle of prohibition of abuse of rights cannot be excluded even in the case of independent bank guarantee. Therefore, if it is objectively apparent that the beneficiary does not have any right against the applicant, even though the beneficiary does not actually have any right, it constitutes an abuse of rights and thus, it is not permissible for the guarantor to refuse the payment of the deposit upon the beneficiary's request. In such a case, the guarantor may refuse the payment of the deposit. Since the guarantee contract for the issuance of bank guarantee between the client and the guarantor is not different from the delegation contract under the Civil Act, the guarantor, as the agent, bears the duty to protect the client's interest in the guarantee contract. Accordingly, when it is objectively apparent that the beneficiary's claim for the payment of the deposit is an abuse of rights, the guarantor bears the duty to refuse the payment in relation to the client, and on the other hand, the client is also the beneficiary's right to claim the payment of the deposit.

(2)On the other hand, in applying the above legal principles to indirect guarantees such as this case, it is reasonable to view that the first bank (the defendant in this case) can oppose the exercise of the right of reimbursement by the beneficiary and the second bank (the plaintiff in this case). In other words, the first bank may refuse the second bank's claim for prohibition of reimbursement in case where the beneficiary has participated in the beneficiary's claim for abuse of right or paid the deposit money to the beneficiary's claim with the beneficiary's claim even though there were sufficient reasons to suspect that the second bank constitutes abuse of right (see Supreme Court Decision 96Da43713 delivered on August 29, 197, and Supreme Court Decision 9Da43713 delivered on September 29, 197).

(3) In this case, each of the above evidence, Eul evidence, Eul evidence, Eul evidence, Eul evidence Nos. 2-1 through 3, Eul evidence Nos. 8, Eul and Eul evidence Nos. 10-2, or evidence Nos. 11-2 (Provided, That the part which is not believed after Eul's evidence Nos. 11-1 is excluded) and the witness paths of the original court, Lee Jong-chul, Lee Jae-in's testimony (except for the part which is not trusted after each of the above testimony), and the whole purport of the pleading is added to the whole purport of the pleading, the supplementary intervenor manufactured and loaded the above lighting pipe equipment from December 18, 1991 to December 31, 1994, and it is obvious that the above API's certification was obtained from the above API on June 10, 1996, and it is hard to see that the supplementary intervenor's request was an objective reason for non-performance of the above APE equipment within the term of validity.

Furthermore, even though the plaintiff was aware of the fact that the plaintiff's claim constitutes an abuse of right, there was no evidence to acknowledge that the plaintiff paid the above security deposit to respond to the claim, and rather, the plaintiff did not have any dispute over the plaintiff's claim for the same reason as the defendants alleged in the above committee, but has finally lost. According to the witness's testimony of the court below, even though the plaintiff notified the defendant about November 1, 1997 that the plaintiff filed a lawsuit against the above committee, the plaintiff did not provide the plaintiff with materials to prove that the plaintiff's action constitutes an abuse of right (if the claim for the deposit of the prior pipe constitutes an abuse of right, its materials can be submitted more easily by the defendants than the plaintiff, but the plaintiff did not provide such evidence, and it seems that the plaintiff failed to prove it).

Therefore, it cannot be deemed that the Plaintiff’s claim in this case constitutes an abuse of right or a fraudulent claim, and some of the testimonys stated in Eul’s evidence No. 11-1, witness Lee Jong-chul, Lee Jong-chul, Lee Jong-chul, and Han-chul’s testimony are not trustable.

(4) Accordingly, the argument that the above plaintiff's claim cannot be accepted by the legal principles of fraudulent transaction or abuse of rights is without merit.

E. Regarding the decision of provisional disposition

If Eul's evidence Nos. 1 (B) added the whole purport of pleading to Eul's statement, the supplementary intervenor filed a provisional injunction against the defendant with this court on February 1, 199 against the defendant for the provisional injunction against the payment of deposit, and "the defendant shall not perform all or part of the obligation based on the second guarantee, approve the existence of the obligation to pay, or do any other act having the same effect as the approval of the obligation to pay or pay" from this court on February 1, 1999. The provisional injunction order is issued, and the above decision can be acknowledged that it was delivered to the defendant around that time. However, even if the provisional injunction order was issued above, the plaintiff cannot be viewed as a ground for denying the plaintiff from seeking the payment of deposit against the defendant, which is the third party. Therefore, this part

4. Conclusion

If so, the plaintiff is obligated to pay the above security deposit to the United Pipe in accordance with the first guarantee letter, and the defendant is liable to pay the above security deposit to the plaintiff in accordance with the second guarantee letter. Therefore, the defendant is liable to pay the plaintiff the amount of 2850,000 U.S. dollars and the amount of 2850,000 U.S. dollars paid to the plaintiff from July 19, 1998 when the plaintiff paid the above security deposit to the United Pipe to the plaintiff, to dispute about the existence and scope of the defendant's duty of performance from July 19, 1998 until January 14, 200, which is the date of the decision of the court below of this case, and from the next day to the full payment

Therefore, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no ground. Since the judgment below is legitimate, the defendant's appeal is dismissed, and it is so decided as per Disposition.

Judge Oh-hyn (Presiding Judge) and the Constitutional Court