[1] The meaning of the purchase of documents in credit transactions to which the 4th Uniform Customs and Practice for Documentary Credits amended in 1983 applies

[2] Whether a purchase bank of a master letter of credit can be deemed to have been made in a case where the bank opened a master letter of credit to the beneficiary and extended the settlement fund of the master letter of credit and received a request from the beneficiary for the purchase of the master letter of credit as security, and then received the documents of the master letter of credit (negative)

[3] Whether a negotiating bank has purchased documents by 'the method of bearing the obligation of payment' only by notifying the issuing bank of the purchase price or claiming the redemption of the purchase price under the condition that the negotiating bank only decided to purchase documents by means of an arrangement to receive the loan by keeping the documents of the master letter of credit as security of the loan related to the white documentary credit, and that it did not actually pay the actual price (negative)

[4] Details of the bank's duty to examine shipping documents in the documentary credit transaction, and the relationship between the negotiating bank and the negotiating bank and the applicant (including the guarantor) where there are sufficient grounds to suspect that the bank knew or forged shipping documents

[5] In a case where the negotiating bank, without knowing the forgery of shipping documents, received shipping documents in advance as a security for the loan, and thereafter becomes aware of the forgery of shipping documents until the purchase of the documents by means of the old deposit, whether the negotiating bank may claim for the letter of credit (negative)

[6] The case dismissing the L/C applicant's claim on the L/C applicant's L/C applicant's L/C applicant's letter of credit on the ground that the L/C applicant's L/C applicant's L/C applicant's presentation of the documents was aware or forged when negotiating

[1] Article 10 (b) (ii) of the Uniform Customs and Practice for Documentary Credits amended in 1983 did not stipulate purchase, but Article 10 (b) (ii) of the Uniform Customs and Practice for Documentary Credits amended in 1993 provides that the bank authorized to purchase refers to the payment of the price for bills of exchange and/or documents (hereinafter referred to as "documents"). It does not require simple inspection of documents without payment. It does not mean that the International Working Committee for Bank Technology (ICC) provides that the bank will immediately purchase the UCP's obligations to the beneficiary on September 1, 1994, because the 5th amendment of the Uniform Customs and Practice for Documentary Credits (UCP) provides that the 4th amendment of the 60th amendment provides that the bank will immediately pay the 5th amendment of the 60th amendment of the 60th amendment to the 60th amendment to the 60th amendment to the 60th amendment to the 60th amendment to the 60th amendment to the 60th amendment.

[2] In a case where a bank of a master credit, which is a purchase credit, has opened a master credit, based on the master credit at the request of a beneficiary who is an intermediary trader, and loans funds to the beneficiary for the payment of the price of the master credit to the beneficiary, and receives the documents of the master credit for the security of the loan from the beneficiary, the bank's opening of the master credit or lending funds for the payment of the price is a separate transaction conducted under its responsibilities and risks in order to obtain profits, such as interest on the loan, and the legal relationship of the master credit under the principle of the independence of the credit (Article 3 of the 4th Amendment of the Uniform Customs and Practice for Documentary Credits), and the negotiating bank can not immediately pay the beneficiary the funds for the initial payment of the master credit and then immediately pay the funds to the beneficiary or pay the funds to the beneficiary the funds in an absolute manner.

[3] Even if the negotiating bank held documents for securing a loan related to the white L/C and decided to negotiate documents by means of means of securing the loan, and did not actually pay for the loan, it can not be said that the negotiating bank notified the issuing bank of the M/C of the purchase or requested the redemption of the purchase price.

[4] The transaction by a documentary credit is not in essence a transaction by goods, and thus, the bank is obliged to verify whether the shipping documents conform to the terms and conditions of the documentary credit. However, if the shipping documents are forged (including alteration or false preparation), if the bank is a party involved in the transaction or knew of the forgery of the documents or there is sufficient reason to suspect such forgery, it is nothing more than a fraudulent transaction under the pretext of the documentary credit transaction, and the bank cannot be protected by the independence and abstractness of the documentary credit. Thus, in the event the shipping documents are forged, the bank has sufficient reason to suspect that the documents were forged or forged at the time of the bank's performance of its duty of reimbursement, and the negotiating bank is also related to the party, or was aware that the documents were forged or forged at the time of the purchase, or that there was sufficient reason to suspect that the documents were forged or forged, the issuing bank should refuse to pay the documentary credit amount to the issuing bank, and even if it did not have the right to demand reimbursement from the issuing bank to the applicant for the documentary credit.

[5] In a case where the negotiating bank of the master letter of credit offers funds to the beneficiary of the master letter of credit for the payment of the price for the loan, and then receives the documents of the master letter of credit in advance for the security of the loan, even if the negotiating bank did not know of the forgery at the time of the initial delivery of the documents, if the negotiating bank knew of the forgery of the shipping documents or had sufficient reasons to suspect such forgery until the purchase of the documents was made by means of an old deposit, etc., the negotiating bank may not claim against the issuing bank the price for the letter of credit.

[6] The case dismissing the L/C applicant's claim on the L/C applicant's L/C applicant's letter of credit on the ground that there are sufficient grounds to suspect that the L/C negotiating bank was forged or forged at the time of negotiating the documents, and that there were sufficient grounds to suspect that the L/C applicant was forged or forged at the time of reimbursing

[1] Article 10 (b) (ii) of the Uniform Customs and Practice for Documentary Credits / [2] Article 3 and Article 10 of the Uniform Customs and Practice for Documentary Credits / [3] Article 10 (b) (ii) and Article 15 and Article 17 of the Uniform Customs and Practice for Documentary Credits / [4] Article 15 and Article 17 of the UCP / [5] Article 15 and Article 17 of the UCP / [6] Article 15 and Article 17 of the UCP 4th / [6] Article 4 of the UCP / [3] Article 15 and Article 17 of the UCP , Article 2 of the Civil Code

[1] [4] Supreme Court Decision 96Da37879 delivered on August 29, 1997 (Gong1997Ha, 2832) / [4] Supreme Court Decision 76Da956 delivered on April 26, 197 (Gong197, 1057) Supreme Court Decision 93Da15632 delivered on December 24, 1993 (Gong1994Sang, 496) / [5] Supreme Court Decision 93Da15632 delivered on December 24, 1993 (Gong194, 496)

Paris National Bank (Attorney Lee Jae-soo et al., Counsel for the defendant-appellant)

Han Bank Co., Ltd. (Law Firm Mayun, Attorneys Yoon Ho-il et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 94Na18043 delivered on August 28, 1996

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal (the supplemental grounds are to the extent of supplement) are examined as follows.

1. As to the first point (such as the intention to purchase a letter of credit and the mistake of facts as to the time therefor, etc.)

A. Article 10 (b) (ii) of the Uniform Customs and Practice for Documentary Credits (UCP 1983), which applies to legal relations with each of the instant L/C, did not stipulate the 1983 Uniform Customs and Practice for Documentary Credits, but Article 10 (c) (ii) of the 1993 UCP provides that "purchase" means the payment of the price for bills of exchange and/or documents (hereinafter referred to as "documents") by the bank authorized to negotiate. It does not mean that it does not simply check documents without payment. However, the UCP Working Committee on Bank Technology (ICC), which provides that "the UCP 4th UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP UCP ACT ACT ACT ACT ACT ACT ACT ACT ACT ACT ACT ACT ACT ACT ACT ACT

Meanwhile, as in the instant case, if the purchasing bank of the master credit, which is the purchase bank of the master credit, established the master credit at the request of the beneficiary who is the intermediary trader, and extended funds to the beneficiary for the settlement of the price of the white documentary credit, and received the documents of the master credit from the beneficiary for the guarantee of the loan, the negotiating bank's opening of the white documentary credit or lending for the settlement of the price was done on its own responsibility and risk in order to obtain profits such as the interest on the loan, and then the negotiating bank did not have any relation with the above, and thus, the negotiating bank cannot be deemed to have purchased the documents of the master credit at the time of purchasing the documents of the master credit at the request of the beneficiary who is the intermediary. Accordingly, it can not be deemed that the negotiating bank immediately purchased the documents of the master credit at the request of the issuing bank for the purchase of the documents of the master credit, or that it did not have any real relation with the purchase of the documents of the master credit at the request of the issuing bank for the purchase of the documents.

B. According to the reasoning of the judgment below, the court below determined that the plaintiff Hong Kong branch of the Hong Kong (hereinafter referred to as " Hong Kong branch") entitled to purchase each of the instant L/C received the bill of exchange and necessary documents (hereinafter referred to as "documents") of the instant L/C from the beneficiary of each of the instant L/C for the purpose of paying the price for each of the instant white L/C, and held them in good faith for the security of loans provided to the non-party 1 L/C, the beneficiary of each of the instant L/C, and that each of the instant L/C negotiation of the instant L/C was not made by the Seoul Working Committee for the purchase of each of the instant L/C at any time after being delegated by the non-party 1 and was able to cover all rights on the timing and method of the purchase to repay the loans. However, the court below determined that each of the instant L/C negotiation of the instant L/C was made by the non-party 2 corporation (hereinafter referred to as "non-party 2 corporation") and that each of the instant L/C negotiation was made by the bank 10th.

However, examining the evidence cited by the court below in comparison with the record, if the Hong Kong Branch considers it necessary to acquire documents as security for the above loan obligation by Nonparty 1, the Hong Kong Branch purchased each of the documents of the letter of credit of this case at any time by unilaterally setting the time of purchase, and the purchase price was submitted to Nonparty 1’s deposit account account at the Hong Kong Branch, and there is no evidence to acknowledge that the Hong Kong Branch was delegated with all authority for the method of purchase.

Furthermore, as acknowledged by the court below, although Hong Kong Branch was able to purchase each of the credit documents of this case within the bank without making a real payment by means of the subscription money, etc. to Nonparty 1, a beneficiary, before hearing Nonparty 2's bankruptcy suit on January 8, 1992, and requested to refund the letter of credit, it is merely an act of indicating the internal decision-making of Hong Kong Branch's Hong Kong Branch's own Hong Kong Branch's own in-depth decision-making to Seoul branch's non-party 1, but it cannot be deemed that the Hong Kong branch expressed its intent to bear the obligation to pay the payment to the beneficiary. Thus, it cannot be viewed that the Hong Kong branch did not bear the obligation to pay the payment to the beneficiary, and it did not constitute a special agreement between Hong Kong branch and Nonparty 1 that Hong Kong branch bears the obligation to pay the payment to Nonparty 1, or that the Hong Kong branch bears the obligation to pay the payment to Nonparty 1.

Therefore, just because the court below acknowledged it, it cannot be said that the purchase was made by the authoritative interpretation on the purchase of the International Commercial Conference Working Committee on Bank Technology between the Hong Kong branch and the non-party 1 company on the 8th day of the same month.

C. Ultimately, according to the facts acknowledged by the court below, it should be deemed that the Hong Kong branch made negotiations between 13:55 and 14:24 of the same month when the price for each of the documents of this case was deposited into the old account under the name of Nonparty 1 in accordance with the contents of the letter of request for purchase prepared by Nonparty 1.

D. Nevertheless, the court below concluded that each of the L/C documents of this case was purchased on the 8th of the same month. Thus, the court below erred in the misapprehension of legal principles as to the meaning and timing of negotiation of L/C documents, and in the misapprehension of legal principles as to the facts against the rules of evidence, and thus, there

2. As to the second point (the misunderstanding of legal principles on the regulation of fraudulent trade or the principle of good faith, and the mistake of facts, etc.)

(a) According to the reasoning of the judgment below, it is difficult to find out that the Hong Kong branch office or Seoul branch office was able to receive the payment of the purchase price of this case on January 9, 192, and that each of the instant L/C was forged or could have been sufficiently known that the transaction of the instant L/C was the most fraudulent transaction. The Hong Kong branch office cannot seek reimbursement of the purchase price from the Seoul Hong Kong branch office, and even if the above purchase price was made, the Seoul Hong Kong branch office or the Hong Kong branch office cannot seek reimbursement from the Defendant bank, which was the guarantor of the said L/C, merely because the Defendant's reasoning stated that it was difficult to view that the Hong Kong branch office or the Hong Kong branch office was able to know the fact that the Plaintiff bank was able to receive the payment of the purchase price of this case on the same date as the above 1st of the Hong Kong branch office or the above 1st of the Hong Kong branch office's deposit account, and that the Defendant bank, the payment broker of this case, was named on January 9, 1999.

B. The transaction by a letter of credit is not in essence a transaction by goods, because it is not a transaction by documents. The bank must, with due care, confirm whether the shipping documents are in conformity with the terms and conditions of the letter of credit. The bank is not obligated to actually examine the shipping documents (see, e.g., Articles 15 and 17 of the 4th Revised Uniform Customs and Practice for Documentary Credits (see, e.g., Supreme Court Decisions 84Meu696, May 28, 1985; 93Da15632, Dec. 24, 1993). If the shipping documents are forged (including alteration or false preparation), if the bank is a party involved in the transaction, or if there is sufficient reason to suspect the forgery of the documents, it is merely a fraudulent transaction through the documentary credit transaction, and thus the bank cannot be protected by the principle of independence and abstractness of the letter of credit.

Therefore, in a case where shipping documents were forged, there was a sufficient reason to suspect that the documents were forged or forged at the time when the issuing bank performed its duty of reimbursement, and the negotiating bank also was related to a party to the act of forgery, or was aware of, or was aware of, a forged or forged document at the time of negotiation, and there was a sufficient reason to suspect that they were forged or forged documents, the issuing bank should refuse to redeem the letter of credit, and the negotiating bank does not have the right to seek reimbursement of the letter of credit amount from the issuing bank, and even if the negotiating bank paid the letter of credit to the negotiating bank, the applicant or the guarantor of the applicant cannot claim payment of the letter of credit amount (see Supreme Court Decision 93Da15632 delivered on December 24, 1993).

As above, the reference point for determining whether a bank involved in the L/C transaction knew or had sufficient reasons to suspect the forgery of shipping documents is the time of negotiation in the case of the negotiating bank, and in the case of the issuing bank, it is the time of redemption in the case of the issuing bank. As such, as in the instant case, if the negotiating bank established the L/C based on the L/C and received the documents in advance for the payment of the L/C to the beneficiary in order to secure the loan, even if the negotiating bank did not know the forgery at the time of the initial delivery of the documents, and made an asset contribution without knowing the forgery at the time of the delivery of the documents, and even if there were sufficient reasons to suspect the forgery of shipping documents until the purchase of the documents by means of the old deposit, etc., the negotiating bank cannot claim against the issuing bank the payment of the L/C.

다. 돌이켜 이 사건을 보건대, 원심이 인정한 바와 같이 이 사건 각 신용장을 포함한 16건의 신용장에 의한 물품거래는 이 사건 신용장개설의뢰인인 소외 2 주식회사과 이 사건 각 신용장의 수익자인 소외 1 회사 및 이 사건 백투백신용장의 수익자인 소외 3 회사의 대표자 등이 공모하여 실제 물품을 선적하지 아니하고 항공화물운송장을 위조한 사기거래였고, 소외 1 회사와 챨스가 모두 소외 2 주식회사의 자회사였으며, 서울지점과 홍콩지점은 모두 이러한 사실을 알고 있었던 점, 이 사건 각 신용장이 금융의 융통을 위하여 발행되는 보증신용장이 아니라 화물의 존재를 전제로 하는 화환신용장인 이상, 중계무역업자인 소외 1 회사에게 백투백신용장의 결제자금을 대출하고 그에 대한 담보로 마스터신용장의 선적서류를 취득한 홍콩지점으로서는 통상 백투백신용장의 서류교체 및 서류점검에 필요한 상당한 기간(제5차 개정 신용장통일규칙 제14조는 서류점검기간을 서류접수일로부터 제7 영업일 이내로 규정하고 있다.) 이내에 지체 없이 매입 여부를 결정하고 매입하는 경우에는 개설은행에 매입서류를 송부하고 개설은행으로부터 상환받은 대금으로 대출금을 회수하는 것이 은행 및 무역실무관행에 따른 정상적인 거래라고 할 것인데도, 원심이 인정한 사실과 기록에 의하면 홍콩지점은 서류교체 및 서류점검에 필요한 상당한 기간을 넘는 3∼5개월씩 14건(U$ 15,420,000)의 마스터신용장 서류를 매입하거나 추심하지 아니한 채 보유하다가 일부 신용장(6건 U$ 6,910,000)에 대하여는 재무구조가 취약한 소외 1 회사로부터 홍콩에서 현금으로 대출금을 상환받으면서 당해 신용장을 취소한 후 서류를 반환하였고, 특히 제일은행 및 서울은행 관련 마스터신용장 2건은 홍콩지점이 매입을 완료하여 서울지점에 상환을 구하였고 그 중 제일은행으로부터는 매입대금을 상환받아 신용장거래가 이미 종료된 이후에 서울은행에 의하여 항공화물운송장의 위조 사실이 확인되자 그 사실이 알려질 것을 우려한 소외 2 주식회사 및 소외 1 회사의 요구를 받아들여 그 신용장의 매입을 취소하고 상환받은 대금을 반환한 후 서류지급제시를 철회하고 송부된 서류마저 반송받아 마스터신용장을 취소하였으며, 또한 자신이 수익자로 되어 있는 신용장에 대하여 서류를 매입하여 대출금의 변제에 충당할 것을 주장한 코월드의 요청을 무시하고 소외 1 회사와 소외 2 주식회사의 요청에 따라 대출금의 상환기한을 연장하면서 홍콩에서 일부 대출금을 상환받고 선적서류의 매입에 응하지 아니하는 등 홍콩지점은 화물선적을 전제로 하는 화환신용장거래에서는 있기 어려운 비정상적이고 변칙적인 거래를 하여 왔고, 홍콩지점은 같은 해 12.경 실시된 본점 감사에서 소외 1 회사와의 거래에 대하여 홍콩지점이 선적서류의 매입절차를 취함이 없이 홍콩에서 그 대금을 지급받은 점을 지적받고 이에 따라 같은 달 27. 2건의 신용장 선적서류에 대한 매입절차를 취하여 개설은행에 송부하는 등 홍콩지점으로서도 자신의 소외 1 회사와의 거래형태가 비정상적이라는 것을 알고 있었던 점, 또한 원심이 인정한 사실과 기록에 의하면 홍콩지점은 자신의 위험부담과 책임하에 위와 같이 변칙적인 신용장거래형태를 취하여 오던 중 1992. 1. 9. 10:00경 이 사건 각 신용장과 동일한 당사자들이 관련된 신용장의 항공화물운송장이 위조된 사실을 확인한 피고 은행으로부터 서울지점을 통하여 이 사건 각 신용장의 항공화물운송장 위조 사실 및 대금지급 중지를 통보받았고, 이와는 별도의 경위로 같은 날 10:40경 한국상업은행으로부터도 소외 2 주식회사 관련 신용장의 항공화물운송장이 위조된 사실을 통보받은 사실을 알 수 있는 한편, 원심이 인용한 을 제9호증(진술조서 사본)의 기재에 의하면 홍콩지점의 상위책임자인 리챠드 팅이 같은 달 8. 또는 9.경(서울지점이 피고로부터 위조 통보를 받기 이전으로 보인다.) 서울지점의 김세철 부장과의 전화 통화에서 부도난 소외 2 주식회사의 선적서류가 위조되었다는 이야기가 있는데 무슨 소리냐고 묻자 김세철이 자신도 지금 알아보고 있는 중이라는 취지의 대화를 나눈 사실을 알 수 있는바, 이와 같이 이 사건 각 신용장의 개설의뢰인이자 마스터신용장 및 백투백신용장의 각 수익자를 자회사로 거느리고 있는 소외 2 주식회사이 자금부족으로 부도가 발생하였고 홍콩지점 스스로도 소외 2 주식회사 관련 선적서류가 위조되었다는 이야기를 듣고 서울지점에 그 진위 여부를 알아보고 있는 중이었으며 공신력이 있는 한국의 중요 금융기관들로부터 소외 2 주식회사, 소외 1 회사 및 소외 3 회사가 관련된 신용장 중 먼저 매입하여 송부한 신용장의 항공화물운송장이 위조된 사실을 통보받은 이상 미처 매입하지 아니한 이 사건 각 신용장의 선적서류도 위조되었을 가능성이 매우 높으므로 이러한 경우 통상 매입을 수권받은 은행은 선적서류를 다시 면밀히 점검하고 수익자 또는 신용장개설은행과 긴밀한 연락을 취하거나 또는 운송회사에 위조 여부를 확인하여 보는 등의 조치를 취한 이후에 매입 여부를 결정할 것인데도 홍콩지점은 그러한 조치를 취하여 보지 아니한 채 대출금 회수에 급급한 나머지 한꺼번에 U$ 5,450,000를 넘는 거액의 이 사건 각 신용장의 서류에 대한 구좌입금 조치를 강행한 점 및 위 을 제9호증(진술조서 사본)의 기재에 의하면 서울지점이 당초 홍콩지점에 소외 2 주식회사을 소개하여 거래를 시작하였고 소외 2 주식회사의 부도가 확실하여지자 같은 달 7. 홍콩지점에게 매입하지 않은 신용장 서류가 있으면 빨리 매입하도록 요청하는 등 이 사건 신용장거래와 관련하여 서울지점과 홍콩지점은 서로 긴밀한 업무협조를 하여 온 사실이 엿보이는 점 등 여러 사정에 비추어 볼 때, 홍콩지점은 적어도 당원이 서류의 매입이 이루어졌다고 보는 1992. 1. 9. 13:55경부터 14:24경까지 사이에 이 사건 각 신용장의 매입대금을 소외 1 회사 명의의 구좌에 입금할 당시에는 이 사건 신용장거래가 항공화물운송장이 위조되어 실제 상품이 선적되지 않은 채 오로지 소외 2 주식회사의 금융의 이용만을 목적으로 하는 허위의 거래라는 것을 알고 있었거나 이를 의심할 만한 충분한 이유가 있었다고 보이고, 서울지점 또한 매입대금 상환 이전에 서류 위조 사실을 알았거나 적어도 그와 같이 의심할 만한 충분한 이유가 있었다고 보아야 할 것이다.

On the other hand, in light of the above legal principles, the Seoul branch is prohibited from repaying Hong Kong branch's repayment of the letter of credit, and the Hong Kong branch has no right to seek reimbursement of the purchase price to Seoul branch, and even if the Seoul branch paid the letter of credit to Hong Kong branch, it cannot claim against the Defendant, the guarantor of the applicant's letter of credit.

D. Nevertheless, the court below determined that, in light of the fact that Hong Kong Branch was already purchasing at the time of January 8, 1992 when it decided to negotiate the letter of credit and notified the Seoul Branch of the purchase, the Hong Kong Branch was notified of the forgery of the document around 10:00 of the same month, without any determination as to whether the Hong Kong Branch knew the forgery of the document or there was sufficient reason to suspect the forgery of the document, it is difficult to view the purchase as a so-called fraudulent transaction which is against the principle of good faith or constitutes an abuse of rights, and it is difficult to regard the payment of the purchase to be made at the Hong Kong Branch, which has the right to claim the redemption of the purchase as above, as it is against the principle of good faith or an abuse of rights. The court below erred by misapprehending the legal principles on the regulation of fraud and the principle of good faith, or by misapprehending the legal principles on the mistake of facts or the principle of good faith, which affected the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)