어음관계가 원인관계에 미치는 영향 - 대법원 2010. 12. 23. 선고. 2010다44019판결 -
Relationship between Liability on the Note and Liability on the Underlying Transaction - Korean Supreme Court 2010. 12. 23, 2010Da44019 -
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In the typical case, the drawer issues a note because of an underlying transaction, specifically to effect payment of an obligation that the transaction creates. An obligee, however, is not ordinarily required to take a note that is issued for an underlying obligation. Nevertheless, the parties generally agree on the use of an note and the payee takes the note that is issued to her. She thereby acquires rights with respect to the note, normally does not lose the rights against the issuer on their underlying deal. Therefore, the issuer's liability on the note does not ordinarily replace her underlying obligation. Taking a note discharges the underlying debt when the parties to the deal agree to this effect. Such an agreement, which is very rare, is effective to discharge the underlying obligation regardless of the nature of the note. This article reviews the theory and the Korean Supreme Court's ruling regarding the overall effect between the liability on the note and liability on the underlying transaction.
Abstract
In the typical case, the drawer issues a note because of an underlying transaction, specifically to effect payment of an obligation that the transaction creates. An obligee, however, is not ordinarily required to take a note that is issued for an underlying obligation. Nevertheless, the parties generally agree on the use of an note and the payee takes the note that is issued to her. She thereby acquires rights with respect to the note, normally does not lose the rights against the issuer on their underlying deal. Therefore, the issuer's liability on the note does not ordinarily replace her underlying obligation. Taking a note discharges the underlying debt when the parties to the deal agree to this effect. Such an agreement, which is very rare, is effective to discharge the underlying obligation regardless of the nature of the note. This article reviews the theory and the Korean Supreme Court's ruling regarding the overall effect between the liability on the note and liability on the underlying transaction.
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