약속어음에 대하여 상이한 법리를 적용한 판결에 관한 연구 (A Study on Rulings where Contradictory Principles of Law were applied to Promissory Notes)

서지정보

· 발행기관 : 경상국립대학교 법학연구소
· 수록지 정보 : 법학연구 / 17권 / 1호 / 191 ~ 206페이지
· 저자명 : 이훈종

초록

Although promissory notes are widely used as means of business transaction, it is common for businessmen using the promissory notes to have poor understanding of the laws related to the notes. One of the important reasons is that the Supreme Court of Korea makes a contradictory application of the law. These contradictory rulings can be seen in legal principles of defense of double-defects and of debtor's personal defense regarding the endorsee of endorsement after maturity.
On the subject of defense of double-defects, the Supreme Court of Korea once ruled to the effect that the bill holder has the right to the promissory note even if the underlying claim is doubly defected. On the other hand, there has also been a decision that the holder cannot insist on the personal defense if the holder has no justifiable ground of claim for possessing the promissory note and no economic gain from demanding the payment of the promissory note.
Had the legal principles of the former case been applied to the latter case, a different conclusion would have been reached. It is reasonable to apply the same legal principle when an identical argument is made on similar circumstances. In the latter case, if the defendant who issued the promissory note paid to the plaintiff the whole amount, the plaintiff would have received the amount from the defendant in addition to a portion of the amount from a third party. The plaintiff unfairly gains a portion of the amount under the promissory note as a profit and such an outcome runs counter to the principle of fairness. Therefore, the legal principle of the latter case is valid.
The Supreme Court of Korea also applies contradictory legal principles on whether the debtor can protest in court on the grounds of claim regarding the prior party of post-maturity endorser. The Court has ruled that the debtor has the right to a personal defense regarding the prior party of post-maturity endorser against the endorsee of the endorsement after maturity. However, it has also ruled in another case that the debtor, without special circumstances, cannot take endorsee to court on the grounds of claim regarding the prior party of post-maturity endorser.
Since the debtor can take the transferee to court on the grounds regarding the transferor, the debtor can take the endorsee of the post-maturity endorsement to court on the grounds of claim regarding the post-maturity endorser. The debtor of the promissory note, however, cannot use a cause that is unsuitable against the post-maturity endorser in order to take the endorsee to court. Therefore, the legal principle in the latter Supreme Court case is valid.
The rulings of the Supreme Court, where contradictory legal principles are applied, should be interpreted with clarity and uniformity. It would be reasonable to try to reach a uniform interpretation.

영어초록

Although promissory notes are widely used as means of business transaction, it is common for businessmen using the promissory notes to have poor understanding of the laws related to the notes. One of the important reasons is that the Supreme Court of Korea makes a contradictory application of the law. These contradictory rulings can be seen in legal principles of defense of double-defects and of debtor's personal defense regarding the endorsee of endorsement after maturity.
On the subject of defense of double-defects, the Supreme Court of Korea once ruled to the effect that the bill holder has the right to the promissory note even if the underlying claim is doubly defected. On the other hand, there has also been a decision that the holder cannot insist on the personal defense if the holder has no justifiable ground of claim for possessing the promissory note and no economic gain from demanding the payment of the promissory note.
Had the legal principles of the former case been applied to the latter case, a different conclusion would have been reached. It is reasonable to apply the same legal principle when an identical argument is made on similar circumstances. In the latter case, if the defendant who issued the promissory note paid to the plaintiff the whole amount, the plaintiff would have received the amount from the defendant in addition to a portion of the amount from a third party. The plaintiff unfairly gains a portion of the amount under the promissory note as a profit and such an outcome runs counter to the principle of fairness. Therefore, the legal principle of the latter case is valid.
The Supreme Court of Korea also applies contradictory legal principles on whether the debtor can protest in court on the grounds of claim regarding the prior party of post-maturity endorser. The Court has ruled that the debtor has the right to a personal defense regarding the prior party of post-maturity endorser against the endorsee of the endorsement after maturity. However, it has also ruled in another case that the debtor, without special circumstances, cannot take endorsee to court on the grounds of claim regarding the prior party of post-maturity endorser.
Since the debtor can take the transferee to court on the grounds regarding the transferor, the debtor can take the endorsee of the post-maturity endorsement to court on the grounds of claim regarding the post-maturity endorser. The debtor of the promissory note, however, cannot use a cause that is unsuitable against the post-maturity endorser in order to take the endorsee to court. Therefore, the legal principle in the latter Supreme Court case is valid.
The rulings of the Supreme Court, where contradictory legal principles are applied, should be interpreted with clarity and uniformity. It would be reasonable to try to reach a uniform interpretation.

참고자료

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