어음·수표의 이득상환청구권에 관한 입법론적 검토

Abstract

When a holder of a promissory note does not exercise his right within a few days from due date, the note would be overdue. The right of the holder of the note shall extinguish when three years have elapsed from the date. Even after the lapse of the period if there remains gains of a debtor of a bill, a creditor of the bill may recover gains from the debtor according to the article 79 of the Law of Bills. This paper explains theories and decisions about the right recovering gains from debtors of bills and checks, and studies the legislation. A indorser had acquired a promissory note for no value, and a indorsee did not exercise his right of the note within a few days from due date. Can does the indorsee exercise the right recovering gains from the indorser of the note？ Only as the creditor of the bill do not exercise his right within the days, it is unfair that the holder of the note can not exercise the right recovering the gains. It is reasonable that the holder of the note can exercise the right recovering the gains. When a cashiers check is overdue, the transferee of the check can not be a bona fide purchaser according to the Supreme Court of Korea. The transferee of a overdue bill can not be a bona fide purchaser. But as the cashiers check is transferred like cash, it is reasonable that the transferee of the overdue check can be a bona fide purchaser.