[1] In a case where the applicant of the letter of credit at the time of the import transaction agreement with the issuing bank agrees to provide the shipping documents and the imported cargo as a collateral for transfer to the issuing bank for the fulfillment of the payment obligation to the issuing bank, the time of acquiring the right of transfer (=the time of acquiring the

[2] In a case where the applicant of a stipulated letter of credit agrees to provide the shipping documents and the imported cargo as a collateral for transfer to the issuing bank, such as an import bill of exchange, when the opening bank entered into an import transaction agreement with the issuing bank, whether the issuing bank may refuse to deliver the shipping documents on account of the lack of security of the applicant (affirmative)

[3] Whether a financial institution's act of trading with the other party by unfairly taking advantage of its transactional position under Article 23 (1) 4 of the Monopoly Regulation and Fair Trade Act solely on the ground that a financial institution causes a so-called restricted custody deposit in relation to the provision of credit (negative), and the standard for determining whether a financial institution constitutes such act

[4] The case holding that a bank's act of inducing a customer to make a so-called bound deposit in connection with the extension of credit does not constitute "act of trading with the other party by unfairly taking advantage of its transactional position under Article 23 (1) 4 of the Monopoly Regulation and Fair Trade Act"

[5] Whether warning measures taken by the Fair Trade Commission on the ground of unfair trade practices constitute "other measures necessary for correction" under Article 24 of the Monopoly Regulation and Fair Trade Act (negative), and whether facts and judgments acknowledged by the Fair Trade Commission in ordering corrective measures against unfair trade practices are binding upon the court in civil procedure (negative)

[1] Where the applicant of the letter of credit at the time of the import transaction agreement with the issuing bank agrees to the effect that the applicant of the letter of credit at the time of the letter of credit at the time of the import transaction agreement, the principal and interest of the imported bill of exchange or shipping documents for the settlement of the principal and interest thereof, expenses related to the revenue, compensation for delay, and other security for the repayment of the payment to the issuing bank, and the same applies to the case of the import cargo at the time of the acquisition of the bill of lading, the issuing bank only has the meaning of acquiring the security right at the time of the acquisition of the bill of lading,

[2] In a case where the applicant of the due letter of credit agrees to provide the transport documents and the imported cargo as a collateral for the performance of the payment obligation to the issuing bank, such as the import transaction agreement with the issuing bank, the issuing bank which has acquired the right of collateral pursuant to the above agreement may not deliver the transport documents to the applicant in order to ensure the effectiveness of the right of collateral in the event the other collateral of the applicant of the due letter of credit does not exist. The due letter of credit between the issuing bank and the applicant gives the issuing bank the due date for the payment of the letter of credit, and the delivery date of the transport documents between the issuing bank and the applicant is not determined by the letter of credit itself or by the Uniform Customs and Practice for Documentary Credits. Thus, in light of the nature of the due letter of credit, the issuing bank cannot refuse the delivery of the transport documents

[3] A financial institution’s act of trading with the other party by unfairly taking advantage of its transactional position under Article 23(1)4 of the Monopoly Regulation and Fair Trade Act shall not be immediately determined solely on the ground that the financial institution made a so-called restricted-called bound deposit in relation to the provision of credit. Whether it constitutes “the act of trading with the other party” should be determined by taking into account ① customer’s credit rating, business status, previous transaction relationship with the financial institution, contents and degree of personal and personal security other than the relevant deposit, ③ ratio of deposit amount to the total amount of credit, ④ The actual interest rate of the total amount of credit, ④ the actual interest rate of the total amount of credit in consideration of the Act on Interest Limitation at the time of deposit, ⑤ the reasons why deposit and withdrawal are restricted, and

[4] The case holding that a bank's act of inducing a customer to make a so-called bound deposit in connection with the extension of credit does not constitute "act of trading with the other party by unfairly taking advantage of its transactional position under Article 23 (1) 4 of the Monopoly Regulation and Fair Trade Act"

[5] The warning measures that the Fair Trade Commission issued on the ground of unfair trade is not stipulated in the Monopoly Regulation and Fair Trade Act, and it cannot be seen as "other measures necessary for correction" under Article 24 of the same Act, and even if it falls under such measures, it does not immediately recognize the illegality of the act of the enterpriser, etc. just because the corrective measures of the Fair Trade Commission have become final and conclusive, and the facts and determination of the recognition of the Fair Trade Commission in the corrective measures shall not be bound by the court in civil procedure in which the damages incurred by the unfair trade

[1] Articles 133 and 820 of the Commercial Act, Articles 190 and 372 of the Civil Act / [2] Articles 131, 133, and 820 of the Commercial Act, Articles 190 and 372 of the Civil Act / [3] Articles 23(1)4 of the Monopoly Regulation and Fair Trade Act / [4] Article 23(1)4 of the Monopoly Regulation and Fair Trade Act / [5] Article 187 of the Civil Procedure Act, Article 24 of the Monopoly Regulation and Fair Trade Act

[1] [2] Supreme Court Decision 98Da62008 delivered on September 7, 1999 (Gong199Ha, 2079) / [1] Supreme Court Decision 97Da19656 delivered on July 25, 1997 (Gong1997Ha, 2717), Supreme Court Decision 98Do2526 delivered on November 10, 1998 (Gong198Ha, 2903) / [5] Supreme Court Decision 89Meu29075 delivered on April 10, 199 (Gong190, 1122)

Newjin Metal Co., Ltd. and one other (Law Firm Square, Attorneys Park Woo-dong, Counsel for the plaintiff-appellant)

Choung Bank (Law Firm, Kim & Lee, Attorneys After Dong-dong et al., Counsel for the defendant-appellant)

Busan High Court Decision 97Na1501 delivered on August 21, 1998

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The plaintiffs' grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief).

1. On the first ground for appeal

Where the applicant of the L/C has agreed with the issuing bank to the effect that he/she transfers the shipping documents and the imported cargo to the issuing bank as a security for the payment of the principal and interest of the imported bill of exchange or the shipping documents or for the settlement thereof, expenses related to the revenue, compensation for delay, and other payment obligations to the issuing bank, the issuing bank shall obtain the right to transfer the goods at the time of the receipt of the bill of lading, and then the contract to transfer the goods is only the meaning of specifically confirming the transfer contract under the above import transaction agreement (see, e.g., Supreme Court Decision 97Da19656, Jul. 25, 1997). If the other security of the L/C applicant is insufficient, the issuing bank which acquired the right to transfer the transfer under the above agreement may not deliver the transport documents to the applicant in order to secure the effectiveness of its right to transfer, and the L/C applicant cannot be viewed as refusing the delivery of the transport documents by the issuing bank to the issuing bank and the time limit between the applicant and the issuing bank.

According to the court below's decision, the court below held that the plaintiff New Metal Co., Ltd. (hereinafter "the plaintiff New Metal Co., Ltd.") which is the applicant of the letter of credit of this case has no reason to determine the amount of damages, etc. further, on the ground that there is no evidence to prove that the plaintiff new metal Co., Ltd. already transferred all rights to the imported goods of this case to the defendant bank, which is the consignee of the letter of credit of this case, and that the security of the plaintiff New Metal Co., Ltd. was insufficient, and that the plaintiff New Metal Co., Ltd. violated the security rights of the defendant bank, and that the plaintiff New Metal Co., Ltd. agreed to deliver unconditional documents regardless of the lack of security rights or infringement of security rights. In light of the records and legal principles as seen earlier, the court below's fact-finding and decision are just, and there is no violation of the rules of evidence or incomplete deliberation as asserted in the grounds of appeal, nor there

2. On the second ground for appeal

The reason why a financial institution causes the so-called ‘act of trading with the other party by unfairly taking advantage of its trading position' under Article 23 (1) 4 of the Monopoly Regulation and Fair Trade Act (hereinafter the Monopoly Regulation and Fair Trade Act) shall not be immediately determined solely on the ground that the financial institution causes the so-called ‘act of trading with the other party' in relation to the provision of credit.' The issue shall be determined by taking into account ① customer's credit rating, business status, previous transaction relationship with the financial institution, contents and degree of personal and personal security other than the relevant deposit, ② ratio of deposit amount to the total amount of credit, ④ ratio of actual credit amount to the total amount of credit amount (in particular, considering the Interest Limitation Act as at the time of deposit), ⑤ details of restriction on deposit and withdrawal, and ④ financial environment and commercial customs, etc.

In light of the records, the above all of the circumstances are as follows: ① The credit rating and operating status of the plaintiffs were not good; ② The lack of the plaintiffs' security; ③ the ratio of the deposit amount to the loans to the plaintiffs from December 11, 1990 to December 29, 1992 shall be 57.7% (loan 3,800,000, detention deposit amount of KRW 2,192,000,000), minimum 38.8% (loan 5,700,000,000, detention deposit amount of KRW 2,183,000,000, and custody deposit amount of KRW 2,183,000,000) at the time of the transaction, which is considerably lower than the above ratio of the deposit amount to the total deposit amount of the defendant bank's deposit, which is the real interest rate at the time of the payment guarantee, and ④ it is difficult to view that the bank's deposit interest rate at the time of the transaction of this case is more than the actual interest rate of the defendant bank.

In addition, with respect to the instant detention deposit, the Fair Trade Commission considers that the Defendant bank violated Article 23(1)4 of the Monopoly Regulation and Fair Trade Act on the ground that it forced purchase (voluntary deposit) by taking advantage of the superior position in the transaction, but decided to take a warning measure instead of corrective measures in consideration of the fact that the violation of the Act is minor and the convenience in financing corporate funds, etc. In addition, the aforementioned warning measure is not provided for in the Monopoly Regulation and Fair Trade Act, and it cannot be deemed as "other necessary corrective measures" under Article 24 of the Monopoly Regulation and Fair Trade Act, and even if it falls under such measure, it does not immediately recognize the illegality of the act of the enterpriser, etc. just because the corrective measures are determined by the Fair Trade Commission, and the fact and determination of the Fair Trade Commission in the corrective measures are not binding on the court in civil procedure that raised compensation for damages arising from the unfair trade practices pointed out in the corrective measures (see Supreme Court Decision 89Meu29075, Apr. 10, 199

Ultimately, the lower court’s conclusion that making the instant detention deposit does not violate the Monopoly Regulation and Fair Trade Act is just and acceptable. In so doing, it did not err by misapprehending the rules of evidence or failing to exhaust all necessary deliberations, or by misapprehending the legal principles as to the detention deposit and the Monopoly Regulation and Fair Trade Act.

3. On the third ground for appeal

According to the court below's decision, the court below held that the defendant bank's assertion that it arbitrarily prepared the contents of the plaintiff's new metal after obtaining the seal of the plaintiff's new metal from the blank transfer contract, and in light of the fact that the type and quantity of the subject matter is stated in the attached list attached to the above contract (No. 14 of the evidence No. 14 of the above transfer transfer contract, and the circumstances where the above transfer transfer contract was concluded between the plaintiff's new metal and the defendant bank at the time of the above transfer transfer transfer contract, since there was a mutual agreement between the plaintiff's new metal and the defendant bank on the fact that the subject matter of transfer transfer is an inventory goods located in the Busan Ho-gu △△dong-dong storage area at the time of the above transfer transfer transfer contract, the transfer transfer transfer contract cannot be deemed to be null and void as it does not specify the subject matter in the transfer transfer contract because it is not specified in the location of the object. In light of the records, the above fact finding and decision of the court below are justified, and there

Ultimately, all of the grounds for appeal cannot be accepted.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Im-soo (Presiding Justice)