2016년도 어음·수표에 관한 대법원판례의 동향과 분석

Abstract

This article examines and analyzes three cases on the Korean Supreme Court Judgements about note and checks. The first case analyzes the Korean Supreme Court Judgement 2016. 10. 27, 2016da235091. Article 148 (Report on Rehabilitation Claims) at Debtor Rehabilitation and Bankruptcy Act in Korea, prescribes 1) Any rehabilitation creditor who intends to participate in the rehabilitation procedures shall report the matters falling under each of the following subparagraphs to the court and submit evidential documents thereof, or certified copies or abridged copies of such evidential documents to the court within the reporting period. By the above Article 148, the plaintiff submitted the copy of the note as the evidential documents thereof. But in reporting on rehabilitation claims, the rehabilitation creditor has to submit the script of the note. Therefore the plaintiff submitted the incorrect evidential document in reporting on rehabilitation claim. The second case deals with the Korean Supreme Court Judgement 2016. 7. 27, 2016da203735. Article 741 (Definition of Unjust Enrichment) in Korean Civil Law prescribes as following, a person who without any legal ground derives a benefit from the property or services of another and thereby causes loss to the latter shall be bound to return such benefit. Then, as a cashier’s check is dishonored by a casualty report, the issue fund which became a insolvency by the special cause(for example, the completion of extinctive prescription about the right of claim for reimbursement of benefit), is the loan requiring the adoption of a special collection measure or management method which is not repaid in normal ways for any reason such as dishonor. Therefore, the issue fund has not any legal ground by Article 741 and the issuer must return the fund to the person who reported the casualty. The third case analyzes the Korean Supreme Court Judgement 2016. 1. 14, 2015da233951. Article 40(Requirements for Commencing Execution) at Civil Enforcement Act in Korea, regulates that if the person subject to an execution is slated to perform his/her obligation when it comes to a specific date, the compulsory execution may be commenced subsequently to the elapse of such date. Civil Enforcement Act is the law for the procedure about the execution of a right. Therefore the defendant’s right must be confirmed by Bill of Exchange and Promissory Notes Act. §34(Maturity of Bill Payable at Sight) provides that a bill of exchange at sight shall be payable on presentment. It shall be presented for payment within a year of its date. The drawer may abridge or extend this period. These periods may be abridged by the endorsers. But a drawer at this case issued a note at sight on a drawee for the security of the indefinite claim. Therefore the starting point at this case must be applied §166 in Civil Law, and it is the time that the holder can exercise his right. In conclusion, the time for the request for a distribution is the time that defendant’s claim for reimbursement will be confirmed.