기한후 배서

소개

유가증권법 - 기한후배서에 대한 원론

목차

1. 서론 ······················································································ 1
2. 기한후배서의 의의 ·································································· 1
3. 만기후배서와의 차이 ······························································· 2
4. 인정이유 ················································································ 2
1) 배서일자와 기한후배서 ······················································· 2
2) 지급거절증서가 작성되지 않은 경우 ····································· 3
3) 지급거절증서 작성이 면제된 경우 ········································ 3
4) 인수거절과 기한후배서 ······················································· 4
5) 지급거절의 사실이 어음면상 명백하게 된 경우 ······················ 4
(가) 기한후배서설 ······························································ 4
(나) 만기후배서설 ······························································ 4
(다) 사견 ·········································································· 5
6) 환어음이 인수거절된 경우 ··················································· 5
7) 백지배서의 경우 ································································· 5
8) 은행의 「不渡사인」이 있는 어음·수표의 배서 ························ 6
(가) 어음의 경우 ································································· 6
(나) 수표의 경우 ································································· 7
(다) 사견 ··········································································· 7
9) 입증책임과 기한후배서 ························································ 8
5. 방식 ······················································································ 8
6. 효력 ······················································································ 8
1) 권리이전적 효력 ································································· 9
2) 담보적 효력 ······································································· 9
3) 자격수여적 효력 ································································· 10
4) 선의취득의 문제 ································································· 10
7. 결론 ······················································································ 10
참고문헌 ······················································································ 12

본문내용

1. 서론

기한후배서는 지시증권의 특유한 양도방법으로 증권상의 권리자가 그 증권에 소요사항을 기재하고 서명하여 이를 상대방에게 교부하는 행위를 말하는데, 이러한 절차를 통하여 소지인에게 발생하는 권리의 이전 ·행사가 간편하고, 지급의 확실성도 증가하게 되며, 이것이 다시 증권의 유통성을 촉진하게도 된다.
이와 같이 정상적인 배서를 통하여 발생하는 강력한 효력 등이 있는데 이런 효력을 부여받기 위해 어음상의 위·변조를 하는 경우, 기한이 경과된 후 배서를 하는 경우, 만기가 경과한 후 배서를 하는 경우 등이 있는데 이러한 배서의 형식적인 면에서 발생하는 권리 및 효력의 존재 유무에 대하여 이론도 있다. 그리고 어음의 여러 조건에 의하여 각기 다른 배서의 유형들이 나타나며, 실질적으로 어음 및 수표의 유통과정에서 배서는 어음채권자나 어음채무자에게 필수적인 것이다. 그리고 그 중 기한후배서에 대하여 상세히 알아보기로 하자

2. 기한후배서의 의의

기한후배서(negotiation of an overdue bill; Nachindossament)란 후배서 라고도 하는데, 어음의 경우에는 지급거절증서 작성 후 또는 지급거절증서작성기간 경과 후의 배서(어음 제20조 제1항)를 말하고, 수표의 경우에는 지급거절증서나 이와 동일한 효력이 있는 宣言의 작성 후의 배서 또는 지급제시기간 경과 후의 배서(수표법 제24조 제1항)를 말한다. 정찬형, 어음·수표법강의(제3전정판), 홍문사, 1999, 415면.
여기서 단순한 만기 후의 배서를 말하는 것은 아니다. 즉 만기 후의 배서가 이루어지더라도 지급거절증서 작성 전 또는 지급거절증서 작성기간경과 전에 행하여진 배서는 만기 전의 배서와 동등한 효력을 가진다. 최준선, 어음·수표법(제5판), 삼영사, 2009, 332면; 대법원 1987.8.25, 판결, 87다카152.
그러므로 기한후배서와 만기후배서의 개념은 구별되어야 한다. 어음법 제20조 제1항에도 만기후배서는 만기전의 배서와 동일한 효력이 있다고 명문으로 규정하고 있다

참고자료

· 최준선, 어음·수표법, 삼영사, 2009.
· 정찬형, 어음·수표법강의, 홍문사, 1999.
· 한상문, 어음·수표거래법, 한국금융연수원, 1998.
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