어음이론과 어음변조의 입증책임

Abstract

This article focused on two unsettled issues in the Bills of Exchange and Promissory Notes Act, the one is ‘Bills Issuance Theory’, and the other is ‘Distribution of burden of proof in case of falsification of bills’. Bill issuance and endorsement has two aspects. The one is the aspect of bearing liability under the bills, and the other is the aspect of transferring the rights under the bills. This article agreed with the ‘Modified Creation Theory’ which explains the former as a unilateral act and the latter as a contract. The ‘Modified Creation Theory’ can explain clearly the confusing precedents of Korean Supreme Court. In the distribution of burden of proof in the case of falsification of bills, the article suggested to follow the general principles of burden of proof. The plaintiff who claims the rights under the bills should prove the fact that a bill issued or endorsed legitimately without falsification. This would not harm the safety of transaction, because when the falsification is made deliberately and could not found easily, the fact of legitimate issuance or endorsement would be presumed and the substantial burden of proof would be turned to the respondent.