2018년도 어음․수표에 관한 대법원판례의 동향과 분석

Abstract

This article examines and analyzes the Korean Supreme Court Judgements in 2018 about Bill of Exchange, Note and Checks. Especially it focuses on two cases. The subject of the first case(Case No. 2017. 8. 18., 2014da87595) is about who should bear the burden of proof for the fact that there was a false indication between the parties that presumed to have colluded to the action on promissory note. In the Civil Code, the a false indication by a collusion(Scheingeschäft) between the parties is null. There are many characteristics of the action on promissory note. One of the most important of these is an abstractness(Abstraktkeit). Because the action on promissory note has an abstractness, the holder can exercise his right on the promissory note without any other obligation just by having a note. This implies that the claimant has a burden of proof of the nullity claim. It is also consistent with the principle of burden of proof in Civil Procedure. Therefore, the plaintiff must bear the burden of proving the nullity in this case. The subject of the second case(Case No. 2018. 4. 24., 2017du48543) is about who is liable for the withholding obligation under the Corporate Income Tax Act due to the disbursement of bill amount on Commercial Papers(CP). In this case, the plaintiff(bank for payment) is merely a person who has made a payment in CP by way of a Clearing System in Korea. That is, he is not a representative of the action of bill, but is a person who executed as an agent that acted the fact of payment. The bank which has been given the proxy for payment of a bill amount by way of endorsement for collection is the bank for presentation. Therefore, the person who is liable for the withholding obligation in this case is the bank for presentation. In conclusion, the Supreme Court's ruling is correct.