信用狀去來에 따른 銀行의 運送書類 受理基準에 관한 硏究

Abstract

The global trade transactions of today have been rapidly increased due to the development of communication and transportation and the distribution of goods and services has become active, the use of L/C (Letter of Credit), the core of trade transactions, has a tendency to increase day by day. This trade transactions, by means of L/C is the material evidence accounting for the transportation of goods, the object of transportation, and is characterized by the performance of the payment of charges, the final aim of trade transactions of all the documents as well as the transport documents to the bank. But, as trade transactions are carried out between traders in countries where language, custom, law and the economic system are different and the concluding and performing Places of the contract and the payment place of charges differ, there is a possibility that a dispute may take place between trade partners. In particular, in case the documents that the beneficiary or designating bank has sent to the issuing bank have any defect in the terms and conditions of L/C, the issuing bank may refuse the payment of charges through its voluntary judgement, but, in most cases, comes to refer to the applicant for the issuance of L/C and comply with his instructions. The payment of charges in the international trade transactions by means of L/C is made by concluding the documentary letter of credit premised on the provision of the documents consistent with the terms and conditions of L/C. The acceptance of the transport documents standing for the object of trade transactions intended for the interest from security on the conclusion of this documentary L/C mostly, conforms to the interpretational principle of the terms and conditions of L/C based on the Uniform customs and practice for Documentary Credits. Accordingly, it is first necessary to understand and master the meanings of the regulation on documents stipulated in the Uniform Customs and practices for Documentary Credits And, the documents accepted at the bank must not only correspond with the terms and conditions of L/C on the face of the document but have consistency without any confiict between documents. Therefore, the bank come to be responsible for screening whether the documents submitted are consistent with the terms and conditions of L/C on the face of the document. Therefore, if the bank has paid for charges in exchange with the documents inconsistent with the terms. and documents of L/C, from the beneficiary's perspective, without presenting the documents consistent with the terms and conditions stipulated in L/C, it comes to bear a responsibility for it, comes to lose a recourse to charges paid, and must bear all commercial risks incurred due to it. Accordingly, it can be said that it is a very important task for the bank to understand the standard and requirement for the screening of the transport documents and find out its exemption from responbility and for the trader to find out the corresponding countermeasure. This thesis made an inquiry into the standard for the acceptance by the bank of the transport documents in the 5th amended Uniform Customs and Practices for Documentary Credits with priority given to the maritime transport documents and also the trader's corresponding counterameasure in view of the bank's standard for the screening of the documents and its escape clause due to it. In addition, in case the bank has accepted the transport documents according to the acceptance condition of the bank on the transaction of L/C, there are problems that may occur in each transport document. Accordingly, the purpose of this study is intended to attempt to enable the trader to engage in a smooth trade activity through the transaction of L/C by having a good grasp of whether it is possible to accept the transport documents. From this perspective, this thesis made a theoretical inquiry into the transactional matters of the L/C relating the transport documents with the sale contract and the payment of charges in the transaction of L/C in chapter 3 , and studied the bank, standard and requirement for the acceptance and screening of the transport documents with focus on the 5th UCP in chapter 3. And chapter 4 suggested the plan that the trade can dispose of the grounds for the exemption of the bank with priority given to the documents and elicited and suggested the conclusion of this thesis on its basis in chapter 5. An attempt is made to summarice the result of reviewing the bank's standard for the screening of the document concerning the transport document of the bank, of those matters supplemented in the UCP 500 and to make the following suggestion : Firstly, it must be borne in mind that the transaction of L/C is characterized by the transaction by means of the documents, not the transaction of goods. That is, there is only the obligation to investigate the documents formally, namely, on the face of the document. Another characteristic of the transaction of L/C is that it has an feature that it is indepent of the sale contract though the letter of credit has been opened on the basis of the sales contract. But it may do harm to the parties to a sale each other from a perspective of commercial transactions. That is the dishonest seller may be paid charges for goods by shipping the defective goods and presenting only the transport documents consistent with the terms and conditions of The L/C, and there may occur the case that the seller may not be paid charges for goods on account of the slight defects of the documents after the goods consistent with the terms and conditions of the L/C were shipped in good faith. Parties to a sale hope that the infringement on the sales contract will be resolved in the transaction of the L/C, but the fact is that the letter of credit does not play any role because of its independent abstraction. Accordingly, the trader should make practical use of the method to attach the quality inspection certificate to the letter of credit. Secondly, because the letter of credit is the conditional payment guarantee, the bank, in many cases, presents the terms and conditions difficult to conform to in opening the L/C. Then, this lays the foundation for making bad use of the transaction of the L/C, thinking of the applicant alone. Consequently, the applicant does not give unfair or unclear instructions and will have to prevent misunderstandings and confusion in advance by using clear phrases. Thirdly, because the bank may provide an opportunity for fasification or alteration by transmitting the original of the L/C to the beneficiary or the confirmation system is not perfect in confirming whether the L/C is true or false, there may be a possibility that the false L/C is transacted. Fourthly, though the letter of credit may not become the means for a promise to pay for someone, the seller tends to misunderstand the L/C as if it could resolve everything in many cases. As a result, the prior credit analysis of the seller may be poorly carried out. And, the trade fraudulence may take place that simulate the transaction of the normal L/C as the parties to a sale conclude the false sales contract through their conspiration. Accordingly, the bank must need a sufficient credit analysis of partives to a sale in advance. Fifthly, there may arise the case that the parties to a sale unreasonably suffer damage for the bank side is excessively considered in the exemption of the bank. For example, the UCP requiring that any acceptance, payment and purchase not be curried out without interim measures, in case that the effective date of the L/C have been expired during the period of the bank's temporary closure of business due to force majeure, may do enormous damage to the parties to a sale in good will. Therefore, the institutional arrangement considering the position of the parties to a sale is necessary. Sixthly, the parties to the trade transaction should make an effort to get rid of the foundation for the dispute, in advance, that may arise from defects or uncertainties in the provisions stipulated in the UCP. They have to endeavor to proceed to wipe out the elements that may enable any dispute to occur in advance by giving clear instructions to the terms and conditions of the L/C and making a clear agreement of required documents. Accordingly, if the importer comes to institute a claim to the exporter as the terms and conditions of the opened L/C is not consistent with the submitted documents, it may come to impair the trade dealings. Furthermore, if it allows the mutual distrust to accumulate and thus gives cause to the event amounting to the legal dispute between both parties, it comes to bring about many losses economically to the parties to a sale. Consequently, an effort will have to be made so that the L/C opened, based on the reciprocal credit between parties to a sale through the prior prevention of claims related to the L/C transaction, may take root deeply as the means for the smooth payment of charges between parties to the export and import trade and activate the trade dealings. At Length, the bank's criterion for the acceptance of the transport documents in the L/C transaction should be judged on a basis of UCP. The trade will have to endeavor not to suffer from disadvantages in the L/C transaction by having the required document consistent with the provisions of the UCP.