Nast Gas Simst Amststrucom (Law Firm Ansan, et al., Counsel for the plaintiff-appellant-appellant)

Korea Exchange Bank Co., Ltd. (Law Firm Handeok, Attorneys Ansan-won et al., Counsel for defendant-appellant)

April 25, 2013

Seoul Central District Court Decision 2010Gahap21233 Decided August 27, 2010

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 6% interest per annum from November 26, 2008 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. The Plaintiff is a company producing automobile parts, etc. in Eul, which is related to Ethtos Group E. Ethtos Group E. This company is a company manufacturing and selling shipbuilding machinery, equipment, natural gas storage containers, etc. in Korea.

B. On December 31, 2007, the Plaintiff entered into a contract for the import of 5,000 cNG bags (hereinafter referred to as “PN”) for motor vehicle (hereinafter referred to as “the import contract of this case”) from this case, and on March 12, 2008, Parsian Bank opened the L/C for the payment of the price for the import contract of this case with the beneficiary of this case.

- Goods: Tracpe 1 CNGV installation fluor(plate type), capacity 70 literss;

- Costs: 1,075,000 Corresponding oil (hereinafter referred to as "responding")

- Terms and conditions of shipment: F.O.B. Busan Port

C. On March 18, 2008, the Defendant opened a performance guarantee of 107,50 U.S. (hereinafter “instant performance guarantee”) with the beneficiary as the Plaintiff on March 18, 2008 at the request of this United Nations case. The content of the instant performance guarantee is as follows, and the Uniform Rule on the independent guarantee guarantee of an international commercial conference, which was in force at the time, (ICC Pubic Rule No. 458, 458; hereinafter “Rules on the Unification of Claims”) applies.

At the request of this United Nations case, the defendant promised to pay the claim amount to the extent that it does not exceed 107,500 minutes when the plaintiff's first written request by the plaintiff and this United Nations case received the plaintiff's written confirmation stating that the failure to comply with the import contract of this case and the failure to comply with the import contract of this case (the defendant promises to pay the claim amount to the extent that it does not exceed 107,500 minutes). (The 107,50 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 2. 30 2.

D. In May 31, 2008, E.N. loaded 2,400 flass first supply volume of flass onto Busan port.

E. The state-owned gas company, “NIGC,” which is a state-owned company in which the State-owned gas company (hereinafter “NIGC”) invested, entered into a contract with the Cheongman Company for the procurement of an automobile fuel CNG conversion project, while carrying out the automobile fuel CNG conversion project (hereinafter “IGKCO”). In connection with the project, the Pacific PYAYND-TAMRR RPR Consorum (PAD) and secondary gas water supply business consortiums (Butan-Sahab Solarz Consorum), MCR PS Psar Co. (hereinafter collectively referred to as “B”).

F. In this context, the UNFCCC supplied the pipe (PIPE) with a pipe-type cNG fluor (hereinafter “Pipe-type fluor”) manufactured in a pipe (PIPE) method, and on May 2, 2008, ENK supplied a pipe-type fluor with a pipe-type fluor and two pipe fluor-type fluor installed on the vehicle (hereinafter “the instant explosion accident”), and agreed on compensation for damages around June 2, 2008.

G. On June 15, 2008 between the Plaintiff and EN Cases, the Plaintiff agreed to extend the term of validity and the shipment period of the above Credit, which was already issued until June 18, 2008, to load 2,60 propin cin cin cin c inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc inc incin

H. In accordance with the above agreement on June 19, 2008, this United Nations case offered to the Plaintiff a document that guarantees the quality of the display-type accelerator. However, this case failed to load the remainder 2,600 display-type accelerators on the wind that the Plaintiff did not extend the period of the credit.

I. On November 25, 2008, the Plaintiff sent to the Defendant a document stating the following matters, and filed a claim for payment of 107,500 U.S. according to the instant performance guarantee certificate.

청구의 이유는 자동차에 장착된 이엔케이의 일부 CNC 실린더가 이란에서 폭발하여 사망자를 낸 사건이 발생하였고, 이후 이란 정부 기구와 이란표준연구소가 이를 이유로 이란 내에서 이엔케이의 CNC 실린더 사용을 금지하게 됨에 따라 원고는 이엔케이의 실린더를 판매할 수 없게 되어 손해를 입었다(The reason of this matter is some ENK CNC cylinders-which installed on the vehicles-, are exploded in Iran and killed some people and after that related government organization and also Iranian Standard Institute barred use up ENK CNC cylinders in Iran and now we can't use our sale any of the cylinders and we had detriment).

[Reasons for Recognition] Class A 1 through 8, 15 through 19, Class B 5, 11 through 14, 25, 26, and 27, respectively, and the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

The plaintiff asserts that since the plaintiff filed a claim with the independent bank guarantee for the performance bond of this case by satisfying the requirements required by the letter of performance guarantee of this case, the defendant is obligated to pay the above performance bond.

As to this, the defendant asserts that the above written statement sent by the plaintiff upon the plaintiff's request for payment is inconsistent with the documents required in the letter of performance guarantee of this case, and even if consistent with the opinion, the plaintiff claims a performance guarantee against the plaintiff even though he knows that he did not perform the import contract of this case, such as the quality of the displayr supplied by the plaintiff, etc., and thus, it is not permissible against the principle of trust and good faith and the prohibition of abuse of rights.

B. Determination

1) Applicable law

The Uniform Regulations apply to the letter of performance guarantee of this case. Article 27 of the Uniform Regulations provides that the law governing the location of the guarantor's place of business shall apply unless otherwise provided in the letter of guarantee, and the law governing the location of the place of the guarantor's place of business shall be the law where the guarantor has two or more places of business.

The guarantee certificate of this case can be recognized as being issued at the defendant's head office in Seoul. Thus, in this case, the unification rule is first applied and the Korean law, which is the seat of the defendant, is applied as the governing law to matters not specifically provided for in the unification rule.

2) Legal nature of the instant performance guarantee

Article 2 of the Uniform Rule provides, without relation to the name or content of the independent guarantee, that the bank, etc. shall make a written guarantee, debt certificate, or promise to make a payment of money in the case of presentation of a written request for payment in conformity with the payment terms and the document expressly required in the letter of guarantee. However, as seen earlier, the instant performance guarantee is a so-called independent bank guarantee in which the guarantor, in light of the following: (a) the Plaintiff, who is the beneficiary, did not perform any part of the import contract of this case; and (b) the Defendant, as the guarantor, requests in writing with the indication of the non-performance part of the import contract of this case, would make the payment of the deposit requested by the Plaintiff without the conditions. In light of the above, the guarantee under the letter of guarantee of this case, is not an ordinary guarantee with the nature of the principal obligation, but is independent of the relationship between this case and the Plaintiff, which is the principal debtor and the beneficiary, and if there is a demand of the beneficiary, the beneficiary may not oppose the beneficiary as a reason for such cause.

3) Whether the Plaintiff’s claim for payment failed to meet the requirements required by the letter of guarantee in this case

Article 20 of the Uniform Regulations provides that a claim for payment based on a guarantee shall be supported by a written statement that the principal obligor has defaulted on the obligation provided for in the basic contract and that the obligor has defaulted on the obligation, and that such statement is not specified in the claim for payment itself.

The plaintiff filed a claim for payment to the defendant and stated the purport that the plaintiff suffered losses as a result of the explosion accident occurred due to defects in the CNG's de facto store exported to Eul, and the sale of the CNG's de facto store in Eul was prohibited, which was imported from ENK, by ENG's failure to sell the de facto store imported from ENK, and this shall be deemed to be a claim clearly stating the non-performance of obligation and the reason why EN's sale was prohibited as a matter of course due to the lack of quality under the premise in the import contract of this case. Thus, it is reasonable to deem that the plaintiff's claim for payment satisfies the requirements required in the letter of guarantee of this case. This part of the defendant's assertion is without merit.

4) Whether the principle of good faith or prohibition of abuse of rights is violated

A) In the event of an independent bank guarantee, the Uniform Rule does not have any provision regarding claims or fraudulent claims contrary to the good faith principle, and thus, it should be determined by Korean law, which is the governing law.

Even if the independent bank guarantee has a abstract or unmanned relationship with the beneficiary and the client, it does not mean that the application of the principle of trust and good faith or the principle of prohibition of abuse of rights is excluded. Thus, if it is objectively apparent that the beneficiary makes a claim against the guarantor by abusing the abstract or unmanned nature of the bank guarantee, even though the beneficiary does not have any right to the client, it is objectively obvious that the beneficiary makes a claim against the guarantor by abusing the abstract or unmanned nature of the bank guarantee, this constitutes an abuse of rights (see Supreme Court Decision 93Da43873 delivered on December 9, 194).

(B) On or after 7, 9, 20 to 26, the Plaintiff’s additional 0G 20 G 20 G 20G 20, and the overall purport of the pleadings stated in No. 27, the NG 20 after the explosion of the instant case is required to submit a final report related to the explosion of 0G 200, and the IG 20G 20 G 9G 200 on July 27, 2008, the Plaintiff’s additional 5G 20G 9G 20, which is not required to import from the 5G 20G 3G 20, which is not required to purchase from the 50G 205G 20, which is not required to supply the 20G 9G 205G 2G 20, which is subject to further review by a third party inspector, etc., to ensure that the 3G 9G 202G 3G 20, which is subject to further review.

However, in full view of the following facts acknowledged as above and evidence, Gap evidence No. 12 obtained by adding the whole purport of the pleadings to the above facts and the following facts ratified by this, the plaintiff was aware that at the time of the request for the above security deposit, the explosion accident is limited to the pipe-type pater, and there is no defect in the display-type packer, and the already imported display-type packer knew that it is easily possible to sell in the country through re-inspection, or that the above import-type packer was caused by a cause unrelated to the causes attributable to this Convention, and thus, it is difficult to hold this case liable for nonperformance of obligations. Accordingly, the plaintiff is believed to be contrary to the above facts, and some of the entries in No. 11, No. 13, and No. 20, and No. 21-21 are not believed.

① The explosion of this case is a pipe-type greener, and it is manufactured in accordance with the manufacturing method considerably different from that of the pipe-type greener. In addition, in the case of the pipe-type greener, it was used only for the products passed through re-inspection after the explosion of this case, but it was possible to use the display-type greener only with the quality assurance of the case. On September 7, 2009, the Plaintiff installed and used the display-type greener on the vehicle without re-inspection, based on the quality assurance certificate of the case.

② Ho Hocom Co., Ltd. entered into an agreement on conversion projects with IGKCO on March 5, 2008, while the Plaintiff was designated as an exclusive agent for the above contract, the instant import contract entered into on December 31, 2007; while the lower companies related to IGK’s conversion projects import from this Tech, while the Plaintiff entered into a pipe-type shop, while the Plaintiff entered into an import contract on December 31, 2007, while the lower companies related to IGK’s conversion projects, while the Plaintiff entered into a pipe-type shop, it is difficult to view the Plaintiff’s import shop-type conversion under the supervision of this case, in light of the fact that the Plaintiff was not aware of the import shop-type conversion from this case, after the explosion of this case, the Plaintiff was imported from the display-type shop-type lux, and that it was difficult to view the Plaintiff’s import shop-type converted from this case’s import shop-type lux.

③ On September 10, 2008, GBG entered into a contract with the Plaintiff on the following terms: (a) between the Plaintiff and the Plaintiff on September 10, 2008: (b) the Plaintiff, as its representative, to provide for reinspection-related operation and management and administrative affairs services, such as leasing the Plaintiff’s warehouse for reinspection; (c) the Plaintiff passed reinspection in return for reinspection; and (d) the Plaintiff is obliged to pay a certain fee in proportion to the quantity of the CNG’s stores taken over to the original buyer. Meanwhile, this case reported the plan for reinspection and the fact of the appointment of GBG, a local agent, to the IG KCO; and (c) around September 30, 2008, the IG KCO actively notified the Plaintiff of the fact that it is possible to install a vehicle through reinspection-free inspection of the CNG stores imported from this case; and (d) the need to undergo reinspection-free inspection between the IGK and the subordinate company that underwent such safety verification procedure, and the Plaintiff’s participation in the 3GN’s inspection process.

④ Even after the explosion of the instant case, the Plaintiff agreed to continuously import the CNG cNG cNG fluor through the e-mail dated June 15, 2008 and July 6, 2008, and agreed to additionally purchase the ENG cNG cNG fluor with the IG KCO’s notice as of August 26, 2009, prior to the issuance of the IG KCO’s notification as of August 26, 2009, that the cNG fluor may be used only by means of the quality guarantee for the EN fluor.

⑤ After the explosion of this case, this Convention exported on June 18, 2008, to the ZYAD Co., Ltd., “ZYAD,” the other transaction parties of “ZGD,” 1,344, and 2,880, respectively, of the vehicle CNG 2,880, respectively. The said cNG 1,344, respectively, were entered on July 4, 2008; 2,880, respectively, were entered on August 1, 2008; and the customs clearance procedure was conducted at any time without any problem.

(6) As seen earlier, IGKCO notified the subcontractor that it may be used when conducting a reinspection on and around July 27, 2008 with respect to the loaded liquids supplied by ENK, and the Plaintiff was involved in the procedures for reinspection of ENG sludge around September 10, 2008, and it appears that around that time, the Plaintiff was aware that it could be used through the procedures for reinspection, such as reinspection. In fact, there was no problem after installing the display-type sludge on the vehicle. In addition, the costs related to the procedures for reinspection under the re-inspection agreement on June 15, 2008 were borne by EN, and if the Plaintiff was able to use the already imported display-type sludge, the Plaintiff used the display-type 2,400 loaded on or around September 7, 2009.

7) The Plaintiff failed to load the remaining flass 2,600 flass flass flass flass flass flass 2,600 flass flass flass flass flass flass flass flass flass 8,00 flass flass flass flass flass flass flass

8) Nevertheless, the Plaintiff rejected the implementation of this case by taking measures to prohibit the use and use of the IGKCO. Unless the import contract of this case was concluded with the approval of the IGKCO, the IGKCO is limited to a third party unrelated to this IGK as a third party and has de facto influence or interest only in relation to the Plaintiff, and therefore, it is not a defect in the quality of the flas type de factor imported from this case under the import contract of this case. Therefore, it is difficult to find any circumstance or ground to view that this case is a contractual liability for any measures to prohibit the use and use of the IGKCO (this is basically a matter belonging to the scope of the Plaintiff’s responsibility).

9. There is no other material to deem that the import contract of the instant case does not contain any content that it has violated its duty or security even though it has maintained the quality and reputation of the pre-exported product, or has guaranteed that it does not cause any accident, even though this case’s import contract does not include any display-type bags subject to sale.

(10) On the other hand, the fact that this case agreed with the Plaintiff on May 17, 200 as 342,00 of the Plaintiff’s amount of damages as to flass 2,400 flass already supplied by the Plaintiff on May 17, 2009 is as seen earlier, but it is not a fact that this agreement is reached between the Plaintiff and the Plaintiff on the condition that this case would pay 342,000 flass to the Plaintiff for smooth resolution and additional export on the condition that this case would be placed in the purport that this case would recognize the quality defects of the above flass flass flass flass flass flass flass crus crus crus crus crus crus crus crus

C) Ultimately, it is objectively apparent that the Plaintiff’s claim for performance guarantee of this case constitutes an abuse of rights as it constitutes an abuse of rights, since it is objectively apparent that the Plaintiff’s claim for performance guarantee of this case constitutes an abuse of rights, even though it is aware that it did not have any rights to this case, the client for performance guarantee of this case.

Furthermore, since the guarantee entrustment contract for the issuance of the letter of performance guarantee between the defendant and ENK is not different from the delegation contract under the Civil Act, the defendant, as the guarantor, bears the duty to protect the interests of the letter of performance guarantee of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of which the guarantor, as the agent. Therefore, when it is objectively apparent that the plaintiff's claim for payment of the deposit of this case of this case of this case as the beneficiary is abuse of right, the defendant bears the duty under the guarantee entrustment contract of this case of this case of this case of this case of this case of this case of this case

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, it is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Yoon Sung-sung (Presiding Judge) Constitution of the Republic of Korea