숨은 어음보증에 대한 민사책임의 유형화

Abstract

This article examines and analyzes the Korean Supreme Court 2015. 5. 14, 2013da49152 judgement about note and check. This case deals with the problem about the legal relation between the drawer, who had issued the note for the security about the origin debtor, and the origin creditor(a holder of the note). It is so-called ‘the hidden guarantee of note and check’. In this case, the decision of Korean Supreme Court has not regarded the behavior of the drawer who had issued the note for the security about the origin debtor, as the behavior of guarantee at Civil Law in Korea. The reason is that the creditor has not ‘the special circumstances’, which could be authorized that he has a right to demand the fulfillment of the security liability at Civil Law from the drawer. But I think that it has to be distinguish between the drawing of note or check for the security and the endorsement for the security. Until 80’s, the Korean Supreme Court had judged the behavior of the drawer who has drawn the note or check for the security, as ‘an overlapped assumption of the obligation’. Nevertheless, the Korean Supreme Court in this case, judged the behavior of the drawer as the security liability at Civil Law. Therefore, I suppose that the decision of Supreme Court that the holder has not the special circumstances, which could be authorized that he has a right to demand the fulfillment of the civil liability from the drawer, is correct. But I conclude that the court’s decision in this case that the holder has the authority that could demand the fulfillment of the security liability at Civil Law, is false. And I propose that the behavior of the drawer in this case has to be interpreted as the ‘an overlapped assumption of the obligation’.