청구보증서 사기의 지급예외에 관한 중국 법원 판결에 대한 고찰

• Published in: 무역연구 Vol. 15; no. 1; pp. 217 - 235
• Main Author: 박세운(Sae-Woon Park)
• Format: Journal Article
• Language: Korean
• Published: 한국무역연구원 25.02.2019; The Korea International Trade Research Institute
• Subjects: 무역학; Demand Guarantee; Injunction; China Court; Fraud Exception
• ISSN: 1738-8112; 2384-1958
• DOI: 10.16980/jitc.15.1.201902.217

The Guarantor shall pay a complying demand even if the applicant has fulfilled the obligation of the underlying contract. However, since this does not encourage a beneficiary’s fraudulent demand, if the fraud of the beneficiary is certain, the court may issue an injunction to the guarantor. Since guarantee disputes are settled outside the court, the content is not well known outside. However, judicial cases provide an opportunity to know the contents of the dispute. Here, the Chinese court case, Powers Links International v. Far East Cable Co. Ltd (2016), is analyzed to know the criteria of the injunction. In this case, the contract was not written with the actual signature date, but the signature date of the draft was kept as it was, giving the beneficiary a cause for dispute through fraudulent demand. This case reveals that trivial things may cause significant harm to a party if sufficient care is not observed in international transactions. In this case, the beneficiary demanded the guarantor, claiming that the applicant did not provide the bid bond mistakenly requested in the draft contract. The court concluded that the beneficiary clearly knew that the applicant was not in default, but made the demand under the guarantee. So the court issued an injunction. KCI Citation Count: 3