어음의 선의지급에서 치유되는 하자의 범위

Abstract

This study aims to explore theoretical and historical considerations of the range of defaults cured by a bona fide payment in Japan and Germany and thereby review Article 40 Clause 3 of the Bills of Exchange & Promissory Notes Act. For this, relevant theories developed recently in the country were investigated to find the theoretical basis for the range of defaults cured by a bona fide payment. The results are presented in conclusion. An examination was made of the most controversial aspects concerning the definition of a bona fide payment: the lack of personal identity of the holder, the lack of the holder's ability to receive payment, and the lack of the right of representation or disposal. As a result, the following conclusions were obtained assuming that the definition of a bona fide payment should be broadly interpreted. ⑴ If the payer makes a payment without being guilty of fraud or gross negligence, the payment should be regarded as valid payment. This is because the assumption of rights by virtue of continuity of endorsement doesn't have great influence on the judgment of personal identity. ⑵ If the holder doesn't have the ability to receive payment from the payer and the right holder changes often during the circulation of the bill, it is difficult for the payer to make a judgement on the holder's ability to receive payment. Therefore, the payer should be exempted from obligation unless guilty of fraud or gross negligence. ⑶ If the payee without any right of representation or disposal from the right holder pretends to have it or requests payment using forged documents, the payer should be protected unless guilty of fraud or gross negligence. The theory of Denial of Application discourages settlement by the Bills of Exchange & Promissory Notes Act, instead suggests settlement by the provision concerning representation in the civil law. It would be more desirable that legal disputes over payment of a bill should be settled using the theories provided by the Bills of Exchange & Promissory Notes Act.