白地어음에 의한 裁判上 請求와 時效中斷論의 再解釋 (대법원 2010. 5. 20, 2009다48312 전원합의체 판결)

Abstract

A blank bill is the incomplete instrument, which is not satisfied the requirement set out Articles 1, 75 of Bills and Notes Act. But it does not become void by a right to fill up on a blank bill. This paper deals with the Korean Supreme Court case decided in May 20th, 2010. In this case, the Supreme Court gave the decision that a litigation by bank bill is applied to the suspension of prescription under the condition that a bill holder exercises the right to fill up the blank part of the bill before the closing arguments in the trial court. This paper agreed this decision by Supreme Court, but has the different approach. By the general opinion and the precedent by Supreme Court, blank bill has a conditional payment claim and a right to fill up the blank part of the bill, and there are deemed to be appeared on a blank bill. But this paper asserts that the right to fill up is not appeared on a blank bill and the third party can not recognize it. Therefore the legal character of the right to fill up is an authority for the vicarious execution to fill up the blank part. In conclusion, an authority for the vicarious execution is not a right of formation(Gestaltungsrecht). Therefore the extinctive prescription is not applied to this authority, but has the definite terms for the function. Because the suspension of prescription is not applied to the authority for the vicarious execution to fill up the blank part, a suit by the holder of the blank bill has the effect of the suspension of prescription about the payment claim right of the holder.