Vienna Paris (Attorneys Kim Jong-chul et al., Counsel for the defendant-appellant)

National Agricultural Cooperative Federation (Law Firm, Kim & Lee, Attorneys Kang Yong-tae et al., Counsel for the plaintiff-appellant)

November 17, 2006

1. The defendant shall pay to the plaintiff 25,952,232.02 US dollars and 6% per annum from March 31, 2005 to July 13, 2005, and 20% per annum from the next day to the day of full payment.

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

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

The following facts may be acknowledged when there is no dispute between the parties, or when the whole purport of the pleadings is added to each entry in Gap evidence 1 to 3-13.

A. Status of the parties

The Defendant is an issuing bank of the following 13 L/C established under the Agricultural Cooperatives Act and engaged in banking business, etc., and the Plaintiff is a bank with its head office in France, which purchased bills of exchange and shipping documents under the L/C of this case from the beneficiary of the L/C of this case.

B. The defendant's issuance of the letter of credit of this case

Upon the application of the Defendant’s Hawn Co., Ltd. (hereinafter referred to as “Hawn Agricultural Co., Ltd.”), the Defendant issued 13 L/C of this case listed in [Attachment 1] list on the following terms:

(i) Form of a documentary credit: Impossibility of revocation;

Z. Applicant: Plul Petroleum Co., Ltd. (PAUL OLCO, LTD), Haak-to-Eup Haak-si in the Republic of Korea Jeonbuk-si 693-28

Consolidated Beneficiary: Borece UN. non-. (BOREIN.V.), KYAYA, W.F.G. (JMBI), MENSING 36, CURAO NACA NTRALDS, NTSALES

m. Payment: Possibility of purchase at any bank

(v)bill of exchange: payment at sight;

⑹ 요구서류

1. Three copies of the commercial invoice (which may be transmitted by telesch Rexroth);

2. Three copies of shipped bill of lading issued or endorsed at the direction of the agricultural cooperative of Korea.

⑺ 부가조건: 매입 시점에 선하증권 원본을 제출할 수 없는 경우에는, 상업송장 및 수익자가 자신의 형식으로 발급한 ‘LOI(Letter of Indemnity)’와 상환으로 대금을 지급할 수 있음 주1) .

⑻ 지급/인수/매입은행에 대한 지시사항: 모든 서류들은 대한민국 서울 중구 충정로 1가 75 농협, 국제금융부로 등기항공우편이나 항공꾸리에(courrier)로 연속하는 2벌로 발송. 수익자 발행의 일람불환어음을 상환은행에 송부하여 상환 청구하여 주십시오.

C. Purchase of bills of exchange and shipping documents by the Plaintiff

On March 18, 2005, the Plaintiff purchased bills of exchange, commercial invoice, LOI, and other shipping documents (attached Form 2) based on the instant L/C from Borais L. L. L.C. (beneficiary).

D. Defendant’s rejection of repayment

(1) On March 18, 2005, the Plaintiff sent the documents related to the credit of this case including bills of exchange to the Defendant, and the above documents reached the Defendant on March 21, 2005.

B. On March 28, 2005, the Defendant sent to the Plaintiff notice of refusal of payment on the grounds that the documents related to the credit include the following inconsistencys with the conditions of the credit.

(1) The original tradition of a bill of lading has not been presented.

2. The original document was not presented.

(3) The addresses of beneficiaries mentioned on the cover and the addresses of beneficiaries mentioned on the commercial invoice are different.

(4) The beneficiary's signature indicated in a commercial invoice is inconsistent with that of LOI.

5. The units of the commercial invoice and the units of the credit of this case are different (as to the Credit Nos. 3, 4, 5, 7, 8, 10, 12, and 13 listed in the Schedule of Attached Table 1).

(6) The related documents have been presented not by two consecutive tendings but by one set.

(7) A consignee of a bill of lading is a third party who is not a defendant.

(8) A bill of exchange does not contain a word "bill of exchange".

9. A document evidencing price terms and conditions was not presented (as to the Credit Nos. 2, 5, 6, 9, 10, 12, and 13 listed in the Schedule of Attached Table 1).

0. As to the Credit No. 11 stated in the Schedule 1:

E. The UCP amended in 1993 stipulated that the Uniform Customs and Practice for Documentary Credits (UCPS) for Document No. 500, 1993, No. 1993, No. 1993, ICC Pubic Credits (UCP 500, hereinafter referred to as the UCP) applies.

2. Judgment as to the defendant's grounds for refusing payment

A. The assertion that the original tradition of the bill of lading was not presented

(1) The defendant's assertion

Of the additional terms and conditions of the letter of credit of this case, the provision that "if it is impossible to submit the original bill of lading at the time of purchase, a commercial invoice and beneficiary may pay the price in exchange for redemption with the LOI issued in its own form." The defendant requested the plaintiff on March 10, 2005 to delete it as an instruction from the negotiating bank of the issuing bank. Thus, the plaintiff paid the letter of credit with LOI in exchange for redemption with the LOI in lieu of the bill of lading of this case. Since the plaintiff paid the letter of credit in lieu of the bill of credit of this case, it cannot be effective negotiation. Since the defendant's demand for deletion of the above additional terms and conditions is a modification of the terms and conditions of the letter of credit, the beneficiary's claim against the issuing bank of the negotiating bank is not based on the letter of credit itself, but on the letter of credit itself, the beneficiary's claim against the issuing bank can not be determined in accordance with the beneficiary's right to demand reimbursement and its compliance with the direction of the issuing bank.

Shed Judgment

㈎ 부가조건 삭제 요구의 효력에 대한 판단

On March 10, 2005, the Defendant demanded that the Plaintiff, among the additional conditions of the instant L/C, delete the conditions under which the beneficiary may request for the negotiation of the LOI as a presentation of LOI on behalf of the LOI on the bill of lading, and indicated this as “an amendment to the direction of the issuing bank.” The beneficiary of the instant L/C, which is the beneficiary of the instant L/C, was notified by the Plaintiff of the Defendant’s request for the amendment, and the Plaintiff did not conflict between the parties.

On the other hand, a bill of lading is a valuable instrument to prove the receipt of the cargo by a marine carrier and to deliver the cargo to a legitimate holder at the port of discharge. The claim relationship between a carrier and its holder under the contract of carriage takes effect in accordance with the statement of securities. The parties who dispose of the cargo have to dispose of the cargo as a security, and when a certificate has been issued to a person entitled to receive the cargo, the same real right relationship as the delivery of the cargo takes effect in relation to the acquisition of rights on the cargo. As such, the consignee who has taken over the right to the cargo acquires the right on the contract of carriage with the obligatory effect of delivery of the bill of lading and takes delivery of the object of assignment with the real right effect, and the ownership of the cargo has been acquired (Supreme Court Decision 96Da6240 delivered on September 4, 1998). The bill of exchange issued on the basis of the bill of lading cannot be viewed as a bill of lading purchase with the bill of lading bill of lading bill's promise to purchase the shipping documents in principle and can be freely purchased with the bill of lading bill.

On the other hand, if an issuing bank that has issued an irrevocable letter of credit including the above additional conditions amends the contents of the credit as it deletes the above additional conditions, it would result in a change in the required documents that the beneficiary should present while requesting the negotiation of the documents related to the credit. Thus, an irrevocable letter of credit cannot be amended without the consent of the beneficiary pursuant to Article 9 (d) (i) of the Uniform Customs and Practice for Documentary Credits that provides that the issuing bank, the confirming bank (if any) and the beneficiary cannot modify or cancel it without the consent

The defendant asserts that the deletion of the above additional condition does not affect the rights of the beneficiary since the beneficiary is open to the defendant, who is the person who opened the letter of credit, even though the beneficiary is unable to claim for the negotiation of the letter of credit in another bank. However, considering the function of the negotiating letter of credit which allows the seller to present shipping documents to his bank and collect the price of the goods promptly after discounting the bill of exchange, the deletion of the above additional condition allows the beneficiary to claim for the payment of the letter of credit only with the issuing bank. It changes the nature of the letter of credit, which is the negotiating letter of credit, into a payment letter of credit that allows the beneficiary to claim for payment only with the issuing bank. The beneficiary is deprived of the right to choose the negotiating bank for its own convenience and it cannot be said that there is no disadvantage to the beneficiary. Accordingly, the defendant's request for deletion of the above additional condition without the consent of the beneficiary is invalid, and the above additional condition that allows the purchaser to make a request for the purchase in lieu of a bill of lading is still effective, and the defendant cannot refuse the plaintiff's request for the bill of lading.

㈏ 원고의 상환청구권 상실 여부에 대한 판단

Negotiation means that a bank authorized to negotiate accepts and pays for bills of exchange and/or documents (Article 10(a)(ii) of the Uniform Credit). The negotiating bank estimates that bills of exchange or shipping documents issued under the Credit will be negotiated by the bank. Accordingly, the negotiating bank is obligated to expect that the bank will sell the bills of exchange or shipping documents issued under the Credit. Accordingly, the issuing bank must pay the amount of the bills of exchange to the beneficiary as well as the beneficiary who is the issuer of the Promissory Notes, or the payee or endorser of the bills, and the bona fide holder of the bills of exchange, and the nominated L/C (the L/C which was not designated by the negotiating bank is a general L/C, the designated L/C is a bank that pays for the bills of exchange of the beneficiary, and the negotiating bank is a bona fide holder of the bills of exchange, and the issuing bank is obligated to redeem the amount of the bills of exchange to the bona fide holder as stipulated in the Credit. Accordingly, banks will be equal to the terms and conditions of Article 14(a) of the Uniform Credit.

Therefore, banks making a negotiating act ultimately believe that the issuing bank's undertaking referred to in the credit is reliance on the issuing bank's undertaking, and pays the export price to the beneficiary at its own expense on the premise that the issuing bank will receive the reimbursement of the price, and even in the case of a certain letter of credit, negotiation is limited to a specific bank, but it is possible for other banks to acquire the bill at a discount since it is not prohibited by the circulation of the bill of exchange issued under the credit and the negotiable securities attached thereto. However, since the issuing bank promises to pay only the designated negotiating bank, it is possible for other banks to request the designated negotiating bank to recover the purchase price. Thus, the negotiation of a bill of exchange under the credit is a general letter of credit that the negotiating bank itself carries out its own business on its own account and at risk and that it does not deal with the negotiating business for the issuer or the issuing bank, which is the beneficiary, or the issuing bank).

Considering the above position of the negotiating bank, for example, other banks in the country where the beneficiary is involved in the L/C transaction, for example, a advising bank that simply notifies the beneficiary of the issuance of the L/C, a confirming bank that promises to pay the L/C and is obligated to pay the L/C to the beneficiary at the request of the issuing bank, and a paying bank that merely pays the L/C entrusted by the issuing bank, the relation with the issuing bank is governed by the contractual relationship between the banks outside the L/C, and the above banks in the relation with the beneficiary of the L/C are deemed to be the representative of the issuing bank. However, the negotiating bank is entitled to negotiate because it causes the negotiating to do so at its own account and risk burden, and cannot be deemed to be the representative of the issuing bank. Accordingly, the argument that the Plaintiff cannot exercise its right to demand reimbursement on the premise that the Plaintiff violated the direction of the

(b) argument that the original document has not been presented.

(1) The defendant's assertion

There is no indication "original" or "Oriinal" in the commercial invoice and LI presented by the Plaintiff, and it is not an original.

Shed Judgment

㈎ 국제적인 신용장 거래에서 요구되는 서류는 신용장에 특별히 언급되지 않는 한 반드시 원본이어야 하고, 원본서류의 개념과 그 판단 기준에 관하여 신용장통일규칙 제20조는 b항에서, "신용장에 별도의 명시가 없는 한 은행은 또한(also) 다음과 같은 방법으로 발급되었거나 발급된 것으로 보이는 서류를 원본으로 수리하여야 한다. ⅰ. 복사시스템, 자동화시스템, 컴퓨터시스템 등에 의하여 발급된 것, ⅱ. 탄소복사지로 발급된 것, 다만 이들 서류는 원본이라는 표시가 있고 또한, 필요한 경우에는 서명이 있어야 한다. 서류는 자필, 팩시밀리 서명, 천공서명, 스탬프, 부호 또는 기타 모든 기계식 또는 전자식 증명에 의하여 서명할 수 있다"고 규정하고, c항 ⅰ호는 "신용장에 별도로 약정되지 않는 한, 은행은 사본이라고 부기되어 있거나 원본이라는 표시가 없는 서류는 사본으로 수리하며, 사본에는 서명이 필요하지 않다"고 규정하고 있다.

However, the International Commercial Conference's Working Committee on Bank Technology (ICC) determines the meaning of the original of Article 20 (b) of the Uniform Customs and Practice for Documentary Credits on July 12, 199 ( de facto "Origination" 20 (b) of the UCP 500) of the UCP, 12 Juu CU 199, 470/871v. 29) by stating that "the document is either printed or written on the original document, or written on the original document, stating that "the document is either printed or written on the original document," or that "the document is not electronically written on the original document," or that "the document is not written on the original document," or written on the original document, stating that "the document is not written on the original document," or that the document is written on the original document, stating that "the document is written on the original document," or that the document is written on the original document, stating that it is written on the original document or written on the original document."

In light of the purport of the above polystainment and the meaning of the word "also" in Article 20 (b) of the Uniform Customs and Practice for Documentary Credits, this provision does not appear to be a comprehensive or exclusive provision that distinguishs the original from the copy in determining the original of the document, in light of the fact that the standard of interpretation of the Uniform Customs and Practice for Documentary Credits in the L/C transaction should be determined by "in determining the original of the document, the person who prepared the document must prepare the document in the intent to prepare the document as the original," so it is reasonable to view that such intention of the document maker is not necessary to indicate the original document regardless of the provision of Article 20 (b) of the Uniform Customs and Practice for Documentary Credits (see Supreme Court Decision 200Da63691, Jun. 28, 2002).

㈏ 이 사건에서 보건대, 갑제2호증의 1 내지 13의 각 3, 4의 각 기재에 의하면, 이 사건 신용장의 조건에 따라 제시된 상업송장에는 수익자인 보레알리스 엔. 비.의 성명 아래 서명란에 Medalla의 서명이, LOI에는 보레알리스 엔. 비.의 성명 아래 'Tarcisio M. Medalla'와 'Nelson T. Yap'의 서명이 있으므로, 위 서류들은 작성자의 서명이 있는 원본으로 보아야 할 것이다. 따라서, 상업송장과 면책서의 원본 서류들이 제출되지 않았으므로 피고는 원고의 상환 청구를 거절할 수 있다는 피고의 주장은 이유 없다.

(c) argument that the beneficiary's address on the cover does not coincide with the beneficiary's address on the commercial invoice.

(1) The defendant's assertion

The document sign is not a document required under the terms and conditions of the credit, but is not explicitly indicated as “transferable”, and the credit is solely an issuing bank’s intent to pay to the beneficiary. Thus, the negotiating bank must indicate that it purchased the documents from the beneficiary in an appropriate manner, such as a mark, in order to clearly indicate that it purchased the documents from the beneficiary, and as long as the document sign was submitted, there is no inconsistency between the other documents. However, the document sign presented by the Plaintiff is just because the name and address of the beneficiary was stated as “BORELS N.S. 4th FLR CBRU 4th FLG 2 BLDU 150, 60, 300 among the beneficiaries of the credit and commercial invoice since each of the credit and commercial invoice of this case falls under the Plaintiff’s “BOREL REGGG PEPPPPRPPRR 30,000 among the beneficiaries of the credit and commercial invoice of this case,” and thus, each of the credit and commercial invoice of this case constitutes the Plaintiff’s negotiation documents of this case.

Shed Judgment

Article 13 (Criteria for Document Review) (a) of the Uniform Customs and Practice for Documentary Credits provides that "the bank shall exercise due care to confirm whether all the documents specified in the credit are consistent with the terms and conditions of the credit on the face of the door. Whether the documents are consistent with the terms and conditions of the credit on the face of the door must be determined in accordance with the international standard bank customs reflected in this Regulation. In addition, documents which are inconsistent with the terms and conditions of the credit shall be deemed not inconsistent with the terms and conditions of the credit." Thus, banks shall examine whether the documents presented by the beneficiary are consistent with and inconsistent with the terms and conditions of the credit, and shall not pay the letter of credit in return for the documents presented by the beneficiary, if there is any defect, falsity, or inconsistency between the documents.

However, according to each statement in Eul evidence 1-1 to 13-A, it can be known that the document signs of the defendant's assertion indicate the list of documents to be sent by the plaintiff to the defendant while sending the documents purchased from the plaintiff to the defendant. Thus, the above documents are not only the documents specified in the letter of credit, but also the documents presented from the beneficiary for negotiating the letter of credit, and they do not fall under the category of the bank subject to examination. Accordingly, it cannot be said that the above documents contain any statements inconsistent with the conditions of the letter of credit.

The defendant argues that "The Negotiation 1995-2001 (Cloleted Opin 1995-2001)" 252 of the International Commercial Conference's "The UCP 1995-201 (Cloak 1995-2001) expressed the documents within the validity period of the credit, and if the documents are not indicated on the document marking, the marking is also included in the documents related to the credit since the issuing bank decided that the refusal can be notified. However, the above opinion does not stipulate any provision on whether the UCP has received the shipping documents at the time or at the time when the shipping documents were purchased. Thus, it is reasonable to view that the shipping documents of the credit should be presented within the validity period of the presentation of the documents (see Supreme Court Decision 2002Da3754, May 27, 2005), and the defendant's assertion to the purport that the documents are subject to examination of the documents by the bank is without merit.

(d) argument that the signature of the commercial invoice does not coincide with that of LOI.

(1) The defendant's assertion

The commercial invoice of this case has only one signature (Medalla), but LOI has two signatures (Tarcsio M. Medalla/Nson T. Yap). Thus, it constitutes a case of inconsistency between documents.

Shed Judgment

Article 37 (Commercial Forwarding) of the Uniform Customs and Practice for Documentary Credits provides, “Unless otherwise stipulated in the letter of credit, the commercial invoice must be indicated as issued by the beneficiary designated in the letter of credit i.e., the letter of credit applicant should be prepared in the future, and the letter of credit applicant should not be required to sign.” Thus, unless the letter of credit in this case requires “the signed commercial invoice” separately, it is reasonable to view that the beneficiary’s signature indicated in the commercial invoice is an uninterest entry or merely an indication of original.

In addition, since the Uniform Customs and Practice for Documentary Credits or the International Standard Bank Practice does not limit the same person's signature on all documents issued by the beneficiary, the same person is not always required. Thus, the defendant's above assertion is without merit, and there is no reason to deem that there is a limitation on the joint exercise of power of representation only by the two persons, in the letter of credit of this case, even if anyone's signature is signed, it shall be deemed a valid signature for the beneficiary.

E. The assertion that the units stated in the commercial invoice are different from the units stated in the letter of credit of this case (as to the letter of credit of this case No. 3, 4, 5, 7, 8, 10, 12, 13 as to the letter of credit of this case)

(1) The defendant's assertion

In accordance with Article 37(c) of the Uniform Regulations, the specifications of the cargo in the commercial invoice must be consistent with the specifications of the credit. However, although the freight specifications of the letter of credit of this case include “KL”, the commercial invoice of this case is stated as “KLS”, and thus, it is inconsistent with each other.

Shed Judgment

㈎ 신용장통일규칙 제13조(서류검토의 기준) a항이 “은행은 신용장에 명시된 모든 서류가 문면상 신용장의 제조건과 일치하는지 여부를 확인하기 위하여 상당한 주의를 기울여 검토하여야 한다. 명시된 서류가 문면상 신용장의 제조건과 일치하는지 여부는 본 규칙에 반영된 국제표준은행관습에 따라 결정되어야 한다. 또한 제출된 서류 상호간에 문면상 일치하지 않는 서류는 신용장의 제 조건과 문면상 일치하지 않는 것으로 본다”고 규정하고 있는 의미는, 신용장 첨부서류가 신용장조건과 문언대로 엄격하게 합치하여야 한다고 하여 자구 하나도 틀리지 않게 완전히 일치하여야 한다는 뜻은 아니며, 자구에 약간의 차이가 있더라도 은행이 상당한 주의(reasonable care)를 기울이면 그 차이가 경미한 것으로서 문언의 의미에 차이를 가져오는 것이 아니고 또 신용장조건을 전혀 해하는 것이 아님을 문면상 알아차릴 수 있는 경우에는 신용장조건과 합치하는 것으로 보아야 하고, 그 판단은 구체적인 경우에 신용장조건과의 차이가 국제적 표준은행거래관습에 비추어 용인될 수 있는지 여부에 따라야 한다( 대법원 2002. 6. 28. 선고 2000다63691 판결 참조).

On the other hand, according to the provisions of paragraph 6 of the International Standard Bank Practice (International Standards Bank Practice Governing PSBP), which is an important basis for determining whether the international standard bank transaction practice is an international standard transaction practice, it is not inconsistent due to the use of documents, such as the terms generally recognized, the terms, for example, the terms, “Ltd” in lieu of “Ltd”, “International”, “Kgs”, “ks” or “ks” instead of “ks”, “manus”, “man's fact-finding”, “mt” in lieu of “man's fact-finding”, “mt”, “mt” in lieu of “Lts” or “documents-making”.

㈏ 이 사건에서 보건대, 별지 1 목록 기재 3, 4, 5, 7, 8, 10, 12, 13번 신용장의 화물내역과 위 각 신용장에 기한 상업송장의 내용을 살펴보면, “KL” 또는 “KLS”은 아라비아 숫자 다음에 위치하면서, 등유(KEROSENE) 또는 석유(GASOIL)와 수량을 표시하기 위한 전치사 “OF”로 연결되어 있으므로 “KL” 또는 “KLS”가 상품의 중량단위이지 상품명세의 일부를 이루는 것이 아니라는 점은 문면상 쉽게 알 수 있는 점, 화물이 원유라는 것을 감안하면 “KL"과 ”KLS"는 모두 킬로리터(Kiloliter)를 표시하는 단위로 밖에는 달리 해석될 여지가 없는 점 등을 고려하면, 위 단위 기재의 불일치는 같은 단위에 대한 다른 표현을 혼동하여 사용한 것일 뿐 신용장 조건을 해하는 것이 아니라는 것을 쉽게 알 수 있는 경우에 해당한다고 보아야 한다. 따라서, 위 불일치로 인하여 이 사건 신용장의 조건과 상업송장이 합치하지 않는다는 피고의 주장은 이유 없다.

(f) argument that the documents are contrary to the terms and conditions of the credit, as they have been presented for one set, not for two consecutive tasks but for one set;

(1) The defendant's assertion

Article 78 of the Additional Terms and Conditions of the Credit of this case provides that all documents must be sent to the defendant as the direction of the negotiating bank. This is an instruction set by the defendant to prevent the loss of the documents as the issuing bank and to ensure prompt examination. Accordingly, the negotiating bank is obligated to comply with the above instruction. Accordingly, the plaintiff who sent the documents in violation of this provision cannot exercise his right of recourse against the instruction.

Shed Judgment

Article 16 (Exemptions for Delivery of Documents) of the Uniform Customs and Practice for Documentary Credits provides that "the Bank shall not be obliged or liable for any delay, damage, or other error that occurs during the delivery of any notice, letter, or document, or for any delay, damage, or loss that occurs during the delivery of all telegraphs." On the other hand, if the negotiating bank lawfully purchased the documents, then the negotiating bank assumes the legal principle that even if the document was destroyed in the course of lawful delivery to the issuing bank, the negotiating bank shall not be liable and reimburse the negotiating bank for the amount of the letter of credit. In addition, in case where the document was delivered twice in sequence, the period of examination of the document shall be calculated from the time when the issuing bank received the documents first arrived, regardless of whether it was dispatched.

Therefore, if a legitimate negotiation has been made by the negotiating bank, the risks of delay or loss that may occur after the dispatch to the issuing bank are borne by the issuing bank. Thus, the issuing bank orders the issuing bank to forward the documents based on the credit in two installments, or the practice of sending the documents in two installments without clear instructions is merely for the purpose of preventing the loss of mail, and allowing the issuing bank to promptly examine the documents, and does not mean a part of the conditions affecting the validity of the request for purchase or reimbursement of the documents related to the credit. Accordingly, in a case where the negotiating bank delivers the documents in a lump sum in violation of the issuing bank’s clear instructions and loses them, it shall not be construed that the negotiating bank is liable for the loss of the documents and prompt examination of the documents if all the documents reached the issuing bank. Thus, the issuing bank cannot reject the request for reimbursement on the ground that the negotiating bank violated the instructions.

(g) argument that the consignee of the bill of lading is inconsistent with the letter of credit because he is a third party other than the defendant.

(1) The defendant's assertion

In addition, since the bill of lading provides for the bill of lading as a required document and the amount of the letter of credit increases or decreases in proportion to the amount of the goods stated in the bill of lading, the bill of lading must be presented in requesting the negotiation of the documents stated in the letter of credit. According to the bill of lading written by the defendant, not the negotiating bank, but through any other way, the consignee is a third party who is not the defendant. Accordingly, it is reasonable to deny the defendant's refusal of the claim for reimbursement of the letter of credit since the bill of lading

Shed Judgment

The letter of credit of this case is stipulated as one of the required documents, but on the other hand, stipulated that the defendant may request the plaintiff to purchase the documents related to the letter of credit of this case as a presentation of LOI in lieu of the bill of lading, and that the beneficiary refused to modify the conditions of the letter of credit, but the plaintiff paid the letter of credit in redemption with LOI in accordance with the above conditions of the letter of credit, and that the plaintiff lawfully purchased the bill of credit and the shipping documents. Accordingly, unless the bill of lading is included in the object of the document examined at the time of the plaintiff's negotiation, the bill of lading cannot affect the status as the negotiating bank duly acquired by the plaintiff, and the defendant cannot reject the plaintiff's claim for reimbursement of the letter of credit of this case on this ground.

H. The assertion that a bill of exchange is null and void since the bill of exchange does not contain a phrase "bill of exchange"

(1) The defendant's assertion

Article 1 subparag. 1 of the Bills of Exchange and Promissory Notes Act requires that the word “bill of exchange” in the main text of the Securities be written in the language used for the preparation of the Securities be written. However, in the bill of exchange issued by the beneficiary in accordance with the Credit of this case, the said word “bill of exchange”

Shed Judgment

㈎ 어음행위가 여러 나라에 걸쳐 일어나는 경우 어음행위의 효력을 판단하는데 어느 나라 법을 적용해야 하는가에 대하여, 국제사법 제53조(방식) 제1항 은 “환어음, 약속어음 및 수표행위의 방식은 서명지법에 의한다”고 규정하고 있으므로, 어음행위는 각 어음행위가 일어난 곳의 어음법에 따라 그 효력을 결정하여야 할 것이다. 따라서, 이 사건 환어음이 형식적 요건을 갖추어 유효하게 발행되었는지 여부는 발행지인 싱가폴의 어음법 규정에 따라 판단하여야 할 것인데, 싱가폴의 어음법은 환어음의 형식에 대하여 “환어음은 발행자가 서명을 부가하여 지시를 받는 자로 하여금, 청구시 또는 특정하거나 장래 특정가능한 시점에, 일정 금액을 지정된 자 또는 그가 지정하는 자, 또는 어음의 소지인에게 지급하도록 하는 서면에 의한 무조건의 지시를 말한다 주4) ” 고 규정하고 있을 뿐, 환어음임을 표시하는 문구를 문면상 반드시 기재하도록 요구하고 있지 않다. 결국 이 사건 환어음이 발행지인 싱가폴의 어음법이 규정하는 요건들을 모두 갖추고 있는 이상 유효한 어음이라 할 것이다.

㈏ 가사, 환어음에 환어음 문구를 필요로 한다고 해석한다 하더라도, 통상 환어음을 동일한 내용의 어음을 한 세트, 즉 2통 내지 3통으로 발행하고, 이중지급 방지를 위하여 어음면에 “first of bill of exchange(second of the same tenor and date being unpaid)" 혹은 ”second of bill of exchange(first of the same tenor and date being unpaid)" 표시를 하는 관행에 비추어 볼 때, 약간의 주의를 기울이면 이 사건 환어음 문면에 나타난 “first of exchange(second of the same tenor and date being unpaid)"라는 문구는 위 환어음이 2통으로 발행되었으며 당해 환어음은 그 중 첫 번째 것임을 뜻한다는 것을 쉽게 알 수 있으므로, 환어음임을 표시하는 문구가 있다고 보아야 할 것이다. 따라서, 이 사건 환어음이 무효이므로 원고의 상환 요청에 응할 수 없다는 피고의 주장은 이유 없다.

(i) the assertion that a document evidencing price terms has not been presented (as to the Credit Nos. 2, 5, 6, 8, 9, 10, 12, and 13 set out in the Schedule 1 Schedule);

(1) The defendant's assertion

The CFR price (including freight) price in the letter of credit of this case refers to the amount calculated by adding a certain amount per distribution to the average price of the "KERO" (hereinafter "Plat price") in the items of the Pocifa/Arab Gul 5) for a total of five days immediately before and after the date of issuance of the bill of lading. However, among the documents purchased by the Plaintiff, the documents purchased by the Plaintiff do not contain any data for calculating the above price. In the absence of such data, the bank is not able to verify whether the amount of the letter of credit is legitimate, and thus, the non-documentary condition (n-Oimary condition) price should be deemed as a document to be presented. Accordingly, the Plaintiff cannot claim reimbursement of the amount of the letter of credit inasmuch as the documents related to the letter of credit were purchased to the Defendant without the necessary documents.

Shed Judgment

This case’s L/C amount is to be calculated by multiplying the actual cost of the L/C amount by the total amount of five days immediately before and after the date of issuance of the bill of lading, by the amount added to a certain amount for each of the five days immediately before and after the date of issuance of the bill of lading. Thus, the amount of the L/C differs according to the Plat price. However, since the Plat price itself exists at all times, it is not a condition that its effect depends on the occurrence of uncertainty, it shall not be considered as a condition that the occurrence of uncertainty

Examining the documents required by the credit as alleged by the defendant cannot alone verify whether the amount of the credit, that is, the price of the goods stated in the commercial invoice, has been calculated correctly. However, in light of the fact that the credit of this case does not require data on the Plat price, that the Plat price is widely used as raw milk appraisal data and that the Plat price is a data disclosed to the general public, it cannot be viewed as an essential document to determine whether the conditions of the credit cannot be met unless the data on the Plat price deals with the matters outside the scope of the defendant's business and are presented by the beneficiary. Accordingly, the defendant cannot reject the plaintiff's claim for reimbursement on the ground that the documents were not submitted.

(j) argument that the amount of the credit exceeds the amount of the credit (as to the credit No. 11 as stated in the attached list 1);

(1) The defendant's assertion

The amount of the letter of credit No. 11 stated in the annexed Table 1 is US$ 2,00,000, and the amount of the bill of exchange based thereon exceeds the amount of the above letter of credit as US$ 2,072,593.25. Thus, the defendant may refuse to pay the amount of the letter of credit. Even if the defendant is liable to pay the amount of the letter of credit to the defendant, Article 39 (b) of the Uniform Customs provides that the upper limit of the amount of the letter of credit shall be limited to the amount of the letter of credit, so the plaintiff may not claim a portion exceeding

Shed Judgment

According to the above additional conditions of the letter of credit, the goods exported are "5,00 MT +/5 PCL of 5,000, and if the actual volume of raw milk exported is within the error of 5,000 MT 5%, it is in accordance with the conditions of the letter of credit. Meanwhile, according to each of the clauses of paragraphs 1 and 8 of the above additional conditions of the letter of credit, CFR is USD 55.25 per ship, and the amount of the letter of credit is adjusted without any separate amendment in accordance with the above provision.

However, since the commercial invoice under the above Credit stipulates that Gasotil 5,05.849 MT (37,513.00) is exported, the above quantity is within the limit of 5% error of 5,000 MT, and it is apparent that the above quantity is calculated by multiplying US$ 2,072,593.25 by the above quantity, which is the price basis under the Credit, it is obvious that the amount of the Credit is 55.25 US dollars. Thus, the plaintiff's purchase of the Credit will be legitimate negotiating that is calculated as US$ 2,072,593.25 US dollars.

The defendant asserts that the beneficiary cannot claim payment of the excess amount if the actual quantity exceeds the amount stipulated in the letter of credit. However, as stipulated in Article 39 (b) of the Uniform Customs and Practice for Documentary Credits, unless otherwise stipulated in the letter of credit, the defendant cannot claim payment of the excess amount even if it exceeds the quantity stipulated in the letter of credit, and thus, it cannot be applied to the letter of credit that explicitly states that the amount of credit should be automatically changed according to the quantity of the shipment. Accordingly, the defendant's argument is without merit.

(k) Preliminary assertion: The plaintiff's assertion that he participated in the tort of the beneficiary.

(1) The defendant's assertion

The additional conditions stipulated in the letter of credit of this case allow the beneficiary to request the purchase of a bill of exchange based on the letter of credit in lieu of the bill of lading. It deprives the beneficiary of the opportunity to obtain the bill of lading, which is the most important security from the bank that purchased shipping documents based on the letter of credit. As such, the beneficiary, who traded a letter of credit under the above LOI, was aware of the fact that the defendant, who was the issuing bank, was not able to obtain the bill of lading, and there was an intention to cause loss to the bank by imposing such result further, which constitutes a tort against the defendant as a fraudulent act by the beneficiary.

However, in light of the developments leading up to the negotiation of the letter of credit that the Plaintiff purchased 13 documents related to the letter of credit, which amount to US$ 26,000,000 on a lump sum, under dispute as to whether or not to delete the conditions of addition under the letter of credit between the issuing bank and the issuing bank, the Plaintiff was also aware of the above circumstances. Therefore, the Plaintiff cannot claim reimbursement of the letter of credit against the Defendant as a joint tortfeasor of the beneficiary’s fraudulent act, or the Defendant offsets the Plaintiff’s damage claim against the letter of credit amount.

Dozed Facts

The following facts can be acknowledged if there is no dispute between the parties, or if the whole purport of the pleadings is added to each of the statements in Gap evidence 11-3 and Gap evidence 12-17.

㈎ 바울석유는 2003.경 국내 석유수입상들이 수입석유를 덤핑으로 판매를 하는 시장 분위기 속에서 이윤을 남기고 판매를 할 수가 없어 10%~15%의 적자 판매를 하다 보니 같은 해 7월경에는 누적적자가 크게 늘어나고 담보물의 한도가 차 국내에서 자금을 융통할 수 없는 상황에 놓이게 되었다.

㈏ 바울석유는 외국석유무역회사들과의 신용장결제방식을 이용하여 금융을 받아 필요 자금을 조달하기로 하고, GNT(홍콩)와 보레알리스 엔. 비.와 위와 같은 내용의 자금거래에 관하여 협의하였다. 이에 따라 2003. 9.경 보레알리스 엔. 비.의 재정담당자가 거래은행인 원고은행의 싱가폴지점장과 함께 한국을 방문하여 바울석유의 상환능력, 함열농협의 신용도에 대한 실사를 마쳤다.

㈐ 바울석유가 실제로 석유를 수입하거나 수출하는 계약을 체결하는 사실이 없음에도 석유를 수입해서 다시 수출하는 형식을 취하여 금원을 융통하는 방식인 이른바 Financing 방식의 거래는 다음과 같이 이루어졌다.

(1) In borrowing funds from GNT, GNT, if it is finitely finitely finites a credit equivalent to the amount of the credit, and Pulul Petroleum, upon receipt of a notice of issuance of the credit through the Defendant, was provided with the documents related to the credit, such as commercial invoice and LOI, which was sent from GNT, and requested the Defendant to negotiate with the credit amount.

② When Ulul Petroleum redeems the borrowed funds as above, it is required to issue a credit with the form of importing petroleum from Bohalis N. Vi. F. F. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L.C. L. L. L. L. L.C. with a grace period for the amount of L.C. L. L. L. L. L.C. need to be extended to the Plaintiff (which is for a certain period of time).

③ The loan borrowed by Pul Petroleum from GNT and settled Borece N. Vi. D. D., was repaid to GNT by way of the issuance of L/C in GNT.

④ As seen above, the form of concluding a sales contract for the volume of another company entering Korea for the transaction of documents without loading of cargo was conducted.

⑤ The two companies agreed to extend the credit for both the above two companies, and the interest for the deferred period of presentation of the credit was paid to Boraece Vi. S. Vi. S.

㈑ 위와 같이 바울석유, GNT, 보레알리스 엔. 비.가 상호 순차적으로 신용장을 개설하여 주고 신용장의 매입을 통하여 자금을 융통하는 금융거래는, 화물을 서류상으로만 인수하고 다시 매도하는 중개무역상의 경우와 마찬가지로 서류만에 의한 거래가 가능한 LOI 조건으로 이루어졌다.

㈒ 함열농협은 바울석유의 의뢰를 받아 2003. 8. 27. 미화 1,500,000 달러의 일람지급신용장을 개설한 것을 시작으로 2005. 1. 24.까지 82회에 걸쳐 신용장을 개설하여 주었는데, 모두 LOI 조건의 신용장이었다.

㈓ 2004. 11.경 피고의 전주 서신동 지점과 거래하던 석유수입업체가 LOI 조건부 신용장을 개설하였다가 신용장 대금이 결제되지 않는 사고가 발생하자 피고는 전국 점포에 대해 LOI 조건부 신용장의 수입제품을 양도담보로 확보하여 일람지급신용장을 기한부 신용장으로 전환하라는 지시를 하여, 함열농협에서도 바울석유에게 양도담보목록을 제공하라고 요구하고, 2005. 1. 24.까지만 신용장을 개설해 주고 그 이후 채권회수에 들어가 2005. 2. 22. 신용장 개설이 중지되어, 바울석유는 이미 발행된 신용장 대금을 결제하지 못해 결국 2005. 2. 28.경 부도를 맞았다.

㈔ 바울석유는 2005. 1. 24.까지 개설한 신용장까지 총 16건을 결제하지 못하였는데, 피고는 그 중 3건에 대한 미화 6,959,232 달러에 대하여는 원고에게 신용장 대금을 지급하고, 나머지 13건(이 사건 신용장)에 대한 미화 25,952,232 달러에 대하여는 원고의 신용장 대금 지급을 거절하였다.

【Judgment

㈎ 신용장통일규칙 3조(신용장과 계약) a항은 “신용장은 비록 그것이 매매계약이나 다른 계약에 근거를 두고 있다 하더라도 본질적으로 이러한 계약과는 별개의 거래이며, 또한 이러한 계약에 대한 참조사항이 신용장에 포함되어 있다고 하더라도 그러한 계약과는 하등의 관계도 없으며 또한 기속되지 않는다. 따라서 신용장하에서 은행이 행하는 지급, 환어음의 인수 및 지급 또는 매입 및/또는 다른 모든 의무를 수행하는 행위는 개설의뢰인의 개설은행 또는 수익자와의 관계에서 초래되는 개설의뢰인에 대한 클레임이나 항변의 대상이 되지 않는다”고 규정하며, 4조는 “신용장거래에서 모든 관계당사자는 서류상으로만 거래를 행하는 것이지 그 서류와 관계되는 상품, 용역 또는 기타 계약이행 등의 거래를 하는 것이 아니다”라고 규정하여, 신용장의 독립·추상성을 규정하고 있다. 따라서 신용장은 오직 서류만에 의한 거래이며, 그 개설의 기초가 되는 원인관계의 영향을 받지 않는 것이 원칙이다.

㈏ 화환신용장에 의한 거래는 본질적으로 서류에 의한 거래이고 상품에 의한 거래가 아니므로 은행은 상당한 주의로써 서류가 문면상 신용장의 조건과 일치하는지의 여부를 확인하면 되고 나아가 서류에 대한 실질적 심사의무까지 부담하지는 아니하므로, 문면상 신용장조건과 일치하는 서류를 매입한 은행에 대하여 상환의무를 이행한 신용장개설은행이 개설의뢰인 또는 개설의뢰인의 보증인을 상대로 신용장대금을 청구하는 경우에 서류가 위조되었다는 사실만으로는 청구를 배척할 사유가 되지 못하는 것이 원칙이나, 선적서류가 위조된 경우에 매입은행이 매입 당시 그 서류가 위조된 문서임을 알았거나 위조된 문서라고 의심할 만한 충분한 이유가 있었고, 또한 신용장개설은행도 매입은행으로부터 상환청구를 받을 당시 그 서류가 위조된 문서임을 알았거나 위조된 문서라고 의심할 만한 충분한 이유가 있었던 때에는, 신의성실의 원칙상 신용장개설은행은 매입은행에 대하여 신용장대금의 상환을 거절함이 마땅하고, 설사 신용장개설은행이 매입은행에게 신용장대금을 지급하였다고 하더라도 개설의뢰인 또는 개설의뢰인의 보증인에 대하여 신용장대금을 청구할 수 없다고 할 것인바, 서류 등의 매입은행이 신용장개설은행에 대하여 신용장대금의 상환을 청구하는 경우에 매입은행이 매입 당시 서류가 위조된 문서임을 알았거나 위조된 문서라고 의심할 만한 충분한 이유가 있었다고 인정되지 않는 한 신용장개설은행은 상환의무를 면할 수 없다고 할 것이고, 그 상환의무에 따라 신용장개설은행이 상환을 하고 개설의뢰인 또는 개설의뢰인의 보증인을 상대로 신용장대금 청구를 하는 경우에 개설의뢰인 또는 개설의뢰인의 보증인은 신용장대금의 지급을 거절할 수 없다( 대법원 1997. 8. 29. 선고 96다37879 판결 ) 주7) .

On the other hand, considering that the principle of independence and abstractness of a letter of credit is the purpose of protecting a bona fide bank that has been established in a real transaction relationship by independently from the transaction relationship that is the cause of the transaction, and guaranteeing the distribution of the letter of credit, it should be interpreted as narrow as possible to acknowledge the exception of the principle of independence and abstractness due to the actual transaction reasons, and it should be proved that the negotiating bank's purchase of shipping documents and request for redemption of the price of the letter of credit to the issuing bank constitutes a violation of the good faith and an abuse of rights.

㈐ 바울석유가 사실은 자금을 융통하려는 목적을 위하여 보레알리스 엔. 비.로부터 석유를 수입하는 외관을 만들어 피고에게 이 사건 신용장의 개설을 의뢰하였고, 보레알리스 엔. 비.는 화물이 선적된 바 없음에도 불구하고 허위의 서류를 구비하여 원고에게 매입을 요청하였으며, 원고가 이를 받아들여 신용장 관련서류를 매입한 사실은 위에서 본 바와 같고, 이 사건 신용장에 기한 선적서류에는 선하증권이 제출될 수 없음을 전제로 한 거래이므로 신용장 관련서류를 매입하거나 신용장 대금을 상환하는 은행으로서는 신용장 대금에 대한 중요한 담보인 선하증권을 취득할 수 있는 길이 애초부터 봉쇄되는 결과가 된다.

However, the beneficiary's request for the purchase of false shipping documents was made under the agreement with the applicant for the issuance of the L/C. Thus, even if its contents are different from the fact, it cannot be said that there was an intention to deceiving the other party to the transaction, and thereby, it cannot be said that there was a party involved in the transaction. The defendant, as the issuing bank of the L/C, was an issuing bank of the L/C between B/G and GNT, and as the negotiating bank of the L/C, up to 82 L/C were established to cover 1 year and 6 months in order, while participating in both trade as the negotiating bank of the L/C, as well as the bank's request for the issuance of the L/C and the purchase of the export L/C were made in order. In light of the fact that there were almost the same amount, amount, shipping date, port of arrival, etc. between the L/C applicant and the issuing bank of the L/C applicant's right to demand the purchase of the L/C applicant's L/C, the applicant's right to demand payment of the L/C.

(l) Sub-decision

The defendant does not have any reason to refuse to repay the credit price. The defendant receives 25,952,232.02 US$2 (1,181,58.82 +2,756,941.51 +388,213.60 US$2,232,913.54 +2,430,016 + 226,047.341,07.341,420.90 + 2,531,504.94 + 757,459.98 US$2,702,702,598 +2,702,593.2,56 +2,358.92 +2,458.48.250 +35,435,435,435,435,58.85, and 200% of the total amount of the credit price from 205.35% of the documents of this case.1.3

3. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons of the judgment as per Disposition.

[Attachment]

Judges Park Young-young (Presiding Judge) and Noh Jeong-hee

1) The English language of the above conditions is as follows: IN THE EVEN (ORIGINL LABLS OTRAL ATRAL ATRAL RE OLE ATRAL OLE OLE OLOTRAL OLOTRAL TRAL NAE TRAL OLE OLGGGGGIE REW WAL YE YEN YMME WAL BGE EFEAL OL REEEECEAL OLAL ALAL OLGEALAL OLAL REEAL ALALALAL ALALAL ALALAL ALALAL ALAL ALALAL ALAL ALALAL ALAL ALAL ACT ALEAL ALALAL ALE ACT ALALALAL ALE ACT ALALMALALALAL ALALALALAL ALALALAL ALALALAL ALEALALALALALALALALALALYALALALYYAL

Note 2) The term “the principal letter of credit issued by the original importer” refers to the case where an intermediary trade applies for the issuance of a second letter of credit with the original exporter as the beneficiary of the original bank. The second letter of credit is generally issued on the basis of the principal letter of credit, but the two are entirely separate letters of credit in light of the principle of independence and abstractness of the letter of credit.

3) In this respect, the negotiating bank is distinguishable from a paying bank that takes the ultimate responsibility of a bill of exchange, which is to be borne by the paying bank, on consignment and payment, by the issuing bank.

주4) BILLS OF EXCHANGE Form and interpretation Bill of exchange defined 3. (1) A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to, or to the order of, a specified person, or to bearer.

Note 5) Plat is an energy-specialized magazine that provides energy-related information, market price survey data, and other energy-related information. The Asia-Pacific/Arab Gulke Bank (PAG Mke Bank) is an announcement of the raw milk market price in the Asia/ASEAN area that has been issued since 1981.

Note 6) The terms and conditions of the letter of credit requiring a bank to act without specifying the documents to be presented. Judicial precedents are the attitude that all non-documentary conditions cannot be invalidated in light of the principle of private autonomy. In general, the theory is divided into cases where: (a) the non-documentary conditions are classified and effective as stated; and (b) the parties are beneficial contents to be bound; and (c) the bank is deemed not to state them; and (d) the credit itself becomes a non-documentary entry that would be invalidated due to its violation of the essence of the letter of credit.

Note 7) In the United States, the United States provides the exception of the principle of independence and abstractness as the so-called "non-permanent rule," and the United States Uniform Commercial Code amended in 1995 explains this principle under the title "Fraud and forgery". In the continental legal system, in particular, in Germany, the above principle is understood as the so-called "legal doctrine of abuse of rights."