미국에서의 어음·수표 선의취득제도와 소비자 보호

Abstract

In America, the holder in due course doctrine was extensively used during the twentieth century to victimize purchasers of consumer goods and services on credit, who found that even if the goods or services they had purchased were never provided or were defective, they were still liable to perform their consumer credit contracts since those contracts had been sold to a holder in due course. In 1975, Federal Trade Commission finally eliminated the holder in due course doctrine through enactment of the holder-notice rule in the area of consumer contracts. Recently, the holder in due course doctrine has again emerged to be widely abused against innocent issuers of negotiable instruments, now against consumers not of goods or services but of credit itself. With the rapid rising of predatory lending and the securitization of subprime mortgage loans, the subprime mortgage loans industry looks like the consumer credit industry of the 1970s before the FTC's promulgation of the holder-notice rule. There is a similar victimization of consumers by dealers who immediately transfer their credit instruments to other business entities. Now, instead of selling defective consumer goods or services and then assigning their credit instruments to finance companies, originators of subprime mortgage loans are defrauding borrowers into signing predatory loan agreements, then assigning those loan agreements to a special purpose vehicle, a business entity that has the sole purpose of holding the pool of mortgages. These days, many American scholars are proposing to put an end to the holder in due course doctrine in the area where it is devastating the innocent, non-commercial issuers of negotiable instruments. They believe that the holder in due course doctrine is no longer necessary in non-commercial loans. According to them, because the best way to motivate the purchasers of loans to stop supplying money to the predatory lender is to compel those purchasers to bear the risk of the fraudulent lending by that lender, the problem of predatory lending requires the elimination of the holder in due course doctrine in home mortgage loans or in all non-commercial loans. Given the fact that the Korean negotiable instrument laws lacks provisions to protect the consumers of goods or services, or the consumers of credit, we need to sincerely consider to follow the example of the FTC's holder-notice rule or the American scholars' suggestions to eliminate the holder in due course doctrine in the area of home mortgage loans or non-commercial loans.