어음수표법상 쟁점에 대한 연구-어음수표의 수수가 원인관계에 미치는 영향과 손익형량론의 도입검토”를 중심으로- (A Study on the Legal Issues in Draft(check) Act)

서지정보

· 발행기관 : 단국대학교 법학연구소
· 수록지 정보 : 법학논총 / 37권 / 4호 / 403 ~ 432페이지
· 저자명 : 도제문

초록

Generally, there are substantial reasons or purposes when drafts or checks are delivered. These basic relations are called the underlying transaction of drafts or checks. Controversies and theories related to the basic transactions not belong to the field of draft or check act but to the field of civil law. Though affairs of negotiable instruments exist as abstract legal relation separated from substantial transactions, the close relation between the two sides is undeniable owing to the facts that the former is no more than the tools of the latter. In some cases the former effect to the latter, in other cases are in the reverse order by the fact that the former is a tool and the latter is a purpose. If a draft or check is delivered to the effect of the payment of substantial liabilities, what kind of effect arouses to the existence of substantial liabilities?When a debtor delivers a draft or a check in relation to the payment of the underlying transaction, there are three types. If a draft is delivered, it is presumed as a conditional payment. when a check is delivered, it is presumed as a guaranty or a security. Is a cashiers check delivered, its regarded as a payment in complete satisfaction. When a draft or a check is delivered as a conditional payment or as a security, the liability and the underlying debts are exist together. If a cashiers check is delivered in complete satisfaction, the underlying debts becomes extinct according to the theory of payment in substitutes.
In this article, I want introduce a opinion about how the delivery of a draft can affect on the underlying liabilities. To begin with, theories and cases about the delivery and the effect on payment of the underlying debts are introduced. Subsequently, the function of drafts and checks in payment system is researched. Finally I want introduce the theory of balance of profit and lass between the person concerned in drafts and checks. In relation to the theory, I tried to verify the propriety of the conclusions in a few cases introduced in light of the theory of profit and loss.
I thought that when a draft or a check is delivered in relation to the payment of the underlying liabilities, to recognize the purpose of the delivery should be decided not by the kinds of tools but by the intention of the person concerned in the draft or check. In case the recognition of the intention of the person concerned in draft is not available, the delivery of the draft or check should be presumed as a conditional payment. Because drafts or checks are tools of payment.
I thought also that when a draft or a check is delivered in relation to the payment of the underlying liabilities, to recognize the purpose of the delivery among as a conditional payment or as a guaranty and as a complete satisfaction, the function of a draft or a check should be considered prior to the intention of the person concerned in draft or check. The function of a draft or a check basically not for a tool of clearing but for a tool of payment. Consequently, when a draft or check is delivered for any purpose, it is unreasonable to be considered as payment in complete satisfaction only by the circumstances or the intentions regardless of its function as a tool of payment. Because a draft or check is regarded to be delivered to pay in complete satisfaction, the underlying debt becomes extinct by the effect of payment in substitutes. The extinction of underlying debts leads to the loss of securities attached on it in case of no particular contracts. It can be considered too dangerous to the creditor who would be satisfied only by the negotiable instrument without any guarantees.
In this article, I would like to propose the theory of profit and loss. The theory is based upon the hypotheses that the profit and loss should be kept substantial balance or equilibrium finally without exception among the persons concerned in life of a draft or check. Issuers, drawers, holders in due or not, endorsers, even forgers can not be exceptional.
A draft or check is nothing but a tool of payment to try to settle the underlying liabilities. The persons concerned in a draft or check, including issuers, drawers, holders in due or not, endorsers, use the drafts or checks to solve or collect the underlying liabilities. The hypothesis that the profits and losses of the persons in civil or commercial transactions should be kept balances is necessarily applicable to the hypothsis that the profits and losses of the persons concerned in drafts or checks should be finally kept balances. The persons concerned in drafts or checks should give and take equal values in substantial transactions. If one of those concerned in drafts or checks takes profit without equivalent prices or pays the cost without proportionate profit, that means the transaction is not resolved finally. Under the theory of profit and loss, the purpose of delivery of drafts or checks is not so much momentous as the final balance of profit and loss substantially.

영어초록

Generally, there are substantial reasons or purposes when drafts or checks are delivered. These basic relations are called the underlying transaction of drafts or checks. Controversies and theories related to the basic transactions not belong to the field of draft or check act but to the field of civil law. Though affairs of negotiable instruments exist as abstract legal relation separated from substantial transactions, the close relation between the two sides is undeniable owing to the facts that the former is no more than the tools of the latter. In some cases the former effect to the latter, in other cases are in the reverse order by the fact that the former is a tool and the latter is a purpose. If a draft or check is delivered to the effect of the payment of substantial liabilities, what kind of effect arouses to the existence of substantial liabilities?When a debtor delivers a draft or a check in relation to the payment of the underlying transaction, there are three types. If a draft is delivered, it is presumed as a conditional payment. when a check is delivered, it is presumed as a guaranty or a security. Is a cashiers check delivered, its regarded as a payment in complete satisfaction. When a draft or a check is delivered as a conditional payment or as a security, the liability and the underlying debts are exist together. If a cashiers check is delivered in complete satisfaction, the underlying debts becomes extinct according to the theory of payment in substitutes.
In this article, I want introduce a opinion about how the delivery of a draft can affect on the underlying liabilities. To begin with, theories and cases about the delivery and the effect on payment of the underlying debts are introduced. Subsequently, the function of drafts and checks in payment system is researched. Finally I want introduce the theory of balance of profit and lass between the person concerned in drafts and checks. In relation to the theory, I tried to verify the propriety of the conclusions in a few cases introduced in light of the theory of profit and loss.
I thought that when a draft or a check is delivered in relation to the payment of the underlying liabilities, to recognize the purpose of the delivery should be decided not by the kinds of tools but by the intention of the person concerned in the draft or check. In case the recognition of the intention of the person concerned in draft is not available, the delivery of the draft or check should be presumed as a conditional payment. Because drafts or checks are tools of payment.
I thought also that when a draft or a check is delivered in relation to the payment of the underlying liabilities, to recognize the purpose of the delivery among as a conditional payment or as a guaranty and as a complete satisfaction, the function of a draft or a check should be considered prior to the intention of the person concerned in draft or check. The function of a draft or a check basically not for a tool of clearing but for a tool of payment. Consequently, when a draft or check is delivered for any purpose, it is unreasonable to be considered as payment in complete satisfaction only by the circumstances or the intentions regardless of its function as a tool of payment. Because a draft or check is regarded to be delivered to pay in complete satisfaction, the underlying debt becomes extinct by the effect of payment in substitutes. The extinction of underlying debts leads to the loss of securities attached on it in case of no particular contracts. It can be considered too dangerous to the creditor who would be satisfied only by the negotiable instrument without any guarantees.
In this article, I would like to propose the theory of profit and loss. The theory is based upon the hypotheses that the profit and loss should be kept substantial balance or equilibrium finally without exception among the persons concerned in life of a draft or check. Issuers, drawers, holders in due or not, endorsers, even forgers can not be exceptional.
A draft or check is nothing but a tool of payment to try to settle the underlying liabilities. The persons concerned in a draft or check, including issuers, drawers, holders in due or not, endorsers, use the drafts or checks to solve or collect the underlying liabilities. The hypothesis that the profits and losses of the persons in civil or commercial transactions should be kept balances is necessarily applicable to the hypothsis that the profits and losses of the persons concerned in drafts or checks should be finally kept balances. The persons concerned in drafts or checks should give and take equal values in substantial transactions. If one of those concerned in drafts or checks takes profit without equivalent prices or pays the cost without proportionate profit, that means the transaction is not resolved finally. Under the theory of profit and loss, the purpose of delivery of drafts or checks is not so much momentous as the final balance of profit and loss substantially.

참고자료

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