백지어음에 의한 어음금 채권의소멸시효중단 및 법원의 지적의무- 대법원 2010.5.20, 선고 2009다48312 전원합의체 판결 -

Abstract

An inchoate instrument is the instrument in which some of legal requirements are blank except for the signature. The holder of the incomplete promissory note can not exercise his right concerning the note until all the required entries are filled out. On account of the strict formality of the promissory note, an inchoate note is finally validated as a complete one when it is supplemented as agreed. However, an incomplete note, a partially deficient one can be negotiated in its incomplete shape practically. It is doubtful whether the same legal principles should be applied on an inchoate note like a complete one. It is problematic that the holder has no means to suspend the extinctive prescription of the claim when an inchoate one is not filled. It is controversial that the holder of an inchoate note can suspend the extinctive prescription by exercising the claim, since the blank note is not actually vitalized before the validation with supplement. Recently the Supreme Court of Korea ruled that the statute of limitations can be interrupted by claiming with an inchoate note. In this article, we review the theories of the inchoate instrument and comment on the recent Court decision which admitted suspension of the extinctive prescription by filing a lawsuit with an inchoate note. It also discusses the trial judge’s duty of clarification and the consequences of its breach. A fair judgement could be guaranteed by securing the parties’ self-justification and self-assertion during the procedure. In a lawsuit filed with an inchoate note, the trial judge is charged with the duty of pointing out legal issues and giving to the parties the chances to exert his authority to complete.