선박수출 관련 선수금환급보증 사례연구- Rainy Sky SA v. Kookmin Bank 사건 -

Abstract

The Rainy Sky SA v. Kookmin Bank case dealt by the English supreme court raises a question of construction of a refund guarantee, which was issued by the Kookmin bank, the guarantor, pursuant to the application of the Jinse Shipbuilding, the shipbuilder/applicant, in favor of the buyers/beneficiaries under the underlying shipbuilding contracts. While stating that the buyers are entitled, upon the termination, cancellation or rescission of the contract, to repayment of the pre-delivery instalments, the guarantee further stated that, on the buyers first written demand, the guarantor would unconditionally repay "all such sums due ... under the contract." When the shipbuilder experienced financial difficulties, the buyers/beneficiaries presented the demand for payment under the guarantee, but the guarantor dishonored. The critical issue in this case is whether the guarantee covered the sums to which the shipbuilders claimed to be entitled under the shipbuilding contract. The English supreme court holds that "commercially minded judges would regard the commercial purpose of the contract as more important than niceties of language. And, in the event of doubt, the working assumption will be that a fair construction best matches the reasonable expectations of the parties." Therefore, in this case, it was decided that on the proper construction of an repayment guarantee, the guarantor's obligations extended to the shipbuilder's insolvency. This case raises practical concerns regarding the difficulties in properly drafting the text of guarantees.