2014Da6442 Advance refund deposit

1. A company;

2. Company B:

Korean Bank, Inc.

D, E, joint management of a rehabilitation company C

Seoul High Court Decision 2012Na90216 Decided November 29, 2013

July 9, 2015

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Where a bank, while making a guarantee, agreed that it will immediately pay the deposit requested by the beneficiary without being bound by a request consistent with the payment terms and conditions of the deposit and the document expressly required by the guarantee regardless of the terms and conditions of the contract or the provision of performance, it shall not be ordinary guarantee in relation to the principal obligation, but shall be the so-called independent bank account which gives rise to the non-term payment obligations of the bank only upon the beneficiary’s request to the beneficiary, independent of the underlying debtor, the client and the beneficiary, who are the creditor, without defense against the beneficiary due to the underlying relationship. The guarantor of such independent bank account shall be liable to pay the amount indicated in the guarantee regardless of whether the applicant is liable for the non-performance of obligations to the beneficiary. In this respect, the independent bank guarantee shall not be separated from the underlying relationship between the beneficiary and the applicant, and shall not be subject to the application of the principle of good faith or the principle of prohibition of abuse of rights, and shall not be objectively acknowledged as the abuse of rights of the beneficiary, unless it is objectively acknowledged as the beneficiary’s right of abuse of rights.

2. Based on the facts stated in the judgment of the court of first instance, the court below: (1) based on the facts stated in its reasoning, it constitutes an independent bank guarantee certificate issued by the defendant as F Co., Ltd. (hereinafter referred to as "F"); (2) even in the case of independent bank guarantee, where the beneficiary's claim constitutes an abuse of rights, the guarantor may refuse to pay the advance payment upon the beneficiary's request; (2) although C Co., Ltd (hereinafter referred to as "C") took advantage of the mold on G vessel and took over the H vessel's position as purchaser of G vessel, the plaintiff Co., Ltd (hereinafter referred to as "Plaintiff") did not have the right to claim the advance payment for the purpose of the instant vessel's non-performance of the right to claim the advance payment for the purpose of this case's non-performance of the right to claim the advance payment for the purpose of this case's non-performance of the right to claim the payment of the advance payment for the vessel; and (3) the plaintiff Co., Ltd. (hereinafter referred to as "Plaintiff B") did not have the right to claim the advance payment.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

According to the reasoning of the judgment below, although it is evident that the shipbuilding contract of this case was legally rescinded by C on the ground that the plaintiffs' subsequent obligation to pay advance payment was not fulfilled, and that the plaintiffs had no right to claim advance payment, it constitutes an abuse of rights. Accordingly, the plaintiffs can refuse the advance payment claim on the ground that C did not meet the requirements for advance payment or constitutes an abuse of rights, and therefore, C's rescission was unlawful.

In light of the above legal principles, in order for the plaintiffs' arguments based on the guarantee of the independent bank guarantee of this case to constitute abuse of rights, it is objectively clear that the plaintiffs' claims by abusing their legal status as the beneficiary of the independent bank guarantee of this case, even though they did not have any right to claim the advance payment against C at the time of the filing of the lawsuit of this case. In addition, the defendant and the plaintiffs' claims for the deposit of this case, which can be known by the records, are the circumstances at the time of the claim of the deposit of this case, namely, whether the cancellation of the above contract of this case was legitimate or not, and the rehabilitation claim confirmation procedure was terminated by one year after the examination procedure was conducted, it is difficult to view that the plaintiffs' claims for the deposit of this case against C at the time of filing of the lawsuit of this case, even though there was no right to claim the advance payment against C, it is objectively evident that

Nevertheless, the court below held that the plaintiffs' claim of this case constitutes abuse of rights based on the result of the hearing that C's rescission of the above contract was lawful and the existence of the plaintiffs' right to claim the advance payment became objectively clear. In so determining, the court below erred by misapprehending the legal principles on abuse of rights in independent bank guarantee, thereby affecting the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik et al.

Justices Lee Sang-hoon

Justices Cho Jong-hee

Chief Justice Park Sang-ok