商業信用狀의 讓渡의 本質과 慣習 = The nature and custom of transfer in commercial letter of credit

다국어 초록 (Multilingual Abstract)

The purpose of this study is to analyze the transfer of letter of credit in the practical and legal aspect, and to explore the problems arising from adopting Article 54 of the uniform customs and practice for Documentary Credits in 1983(U.C.P) as the principle of transfer . In addition, it is intended to suggest several amendments in Article 54 of U.C.P
For this aim, the applicable laws of the transfer in the main countries of the world will be studied, and also the legal theories of transfer be analyzed and examined, in comparison with each law. Accordingly, the study on the customs and law of transfer will show the legal status, rights, and obligations of every party in the transfer of letter of credit. is emphasized on Article 54 of U.C.P., to raise several problems, and final part conclusion.
After I studied the subjects of this dissertation, that is to say, the nature and custom of transfer, the legal principles in the transfer, the legal relationships between the parties, and the analysis of Article 54 in U.C.P., I have come to the conclusion as follows;
First, a transferable credit definition is not provided in U.C.P. For the transferable credit, a definition on Article 54(a) is not ruled, but its procedure is expressed. Therefore, the parties concerned have met with many difficulties in practicing the transfer of credit. Accordingly a definition must be added to Article 54 in detail, to exclude the difficulties arising from the interpretation of the subclauses (a).
Second, the transfer clause in a from of application requesting the bank must be made for the practice of transfer. first beneficiary is authorized to transfer the credit by only the term of "transferable" that is written on the form of credit application between applicant. and bank. Therefore the parties concerned with the transferable credit can not recognize what is authorized by applicant. For that reason, the transfer clause on the form must be expressed to make applicant's intention clear.
Third, Article 54 does not provide the right for parties on the amendments and
cancellation of transferable credit. In this cases of total transfer and partial transfer, their rights to amendments and cancellation must be furnished in Article 54. For instance, first beneficiary and second beneficiary have the right without regard to total transfer or partial transfer.
Fourth, the prohibition clause of retransfer must be written on the credit which will be transferred to the second beneficiry. "A transferable credit can be transferable only" is provided on Article 54(e). But when the credit is transferred to the second beneficiary, the prohibition clause is not usually written. Thus, the clause must be written on the retransferred credit for the prevention of retransfer.
Fifth, the provision of "transfer-back" must be provided. When credit transferred to the second beneficiary is transferred back to the first beneficiary. There is a possibility that such a "transfer-back" will be considered as retransfer in accordance be added to Article 54.
Finally, Article 54(g) has a problem about first beneficiary's substitution of invoices. "The first beneficiary has right to substitute his own invoices‥‥" is provided on amended as "his commercial invoices" on Article 54(g). But there are many kinds of invoices that is used in international trade. Thus, the subclause is not certain, For that reason, "His own invoices" must be specifically amended as "his commercil invoices" on Article 54(g).