원인채권, 어음채권의 시효소멸과 이득상환청구권

Abstract

In typical promissory note cases, the drawer issues a note based upon an underlying transaction, thereby influencing the obligation by the underlying transaction. Where a promissory note holder may exercise both the right from promissory note and the one from the underlying transaction, the interrelation between two rights could cause complicated legal effects. The legal implication might be even harder to interpret because the Korean Promissory Note Code confers the promissory note holder a special right (Wechselbereicherungsanspruch) where the statute of limitation for the promissory note has expired. This paper is mainly focused upon the relationship between the statute of limitation and the special right aforementioned. The Korean Supreme Court has a firm stance that a promissory note holder whose limitation of statute for the note has expired may not exercise such special right as long as he may resort to any rights by the underlying transaction. The Court continues to state that the special right shall be the last resort for the promissory note holer. This paper, however, gives a new angle to prove the logic of the Court and concludes that in some cases the special right should be given to the promissory note holder even where he has the right from underlying transaction.