[수표금][집15(3)민,157]
(a) The validity of the check after the nullification judgment has been rendered;
(b) The validity of the nullification judgment where the applicant for the nullification judgment was aware of the lawful owner of the check before making the application; and
In addition, even if the applicant for a nullification judgment is not a person who has lost his/her authority due to the reason for theft or loss of the check, and at least it is recognized that the legitimate holder of the check should not be known before applying for the second judgment, the second judgment sentenced once cannot be said to be null and void.
Article 468 of the Civil Procedure Act, Article 467 of the Civil Procedure Act
Supreme Court Decision 65Da1002 Delivered on July 27, 1965
Plaintiff
Defendant
Seoul High Court Decision 66Na617 delivered on June 30, 1967
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the Plaintiff’s agent’s grounds of appeal.
(1) With respect to the first issue, even after a judgment of nullification has been rendered once on the check, the right on the check cannot be exercised even if the lawful holder of the check. This is because the check is null and void as a passive effect of the judgment of nullification. If the plaintiff is the legitimate holder of the check as if it were discussed, and the applicant for the public summons is not a person who has been stolen or lost the check, the plaintiff may be entitled to remedy by filing a lawsuit of dissatisfaction to extinguish the validity of the above judgment (see Supreme Court Decision 65Da1002, Jul. 27, 1965), so long as the court below's application for the public summons and the judgment of nullification has justified and the judgment of nullification has become null and void, it shall not affect the validity of the judgment unless the judgment of nullification has been revoked by establishing objection against the judgment, and it shall be justified in holding that the plaintiff cannot assert the right on the check even if he lawfully holds the check.
(2) As to the second ground of appeal, if the applicant for the judgment lacks the qualification of the applicant for the judgment, or if the purpose of the application is to infringe on another person’s legitimate right, such judgment shall be deemed to be null and void without having to wait for its revocation. However, even if the applicant for the judgment of nullification with respect to the check in this case is liable for damages due to the circumstances such as the argument, the judgment shall not be deemed to be null and void as a matter of course. Therefore, even if the applicant for the judgment of nullification was unaware of the fact at the time of the application for the public summons, even if the Plaintiff had known that he was the legitimate holder of the check in this case, it shall not be deemed to have known that it was null and void until the application for the judgment of nullification was made. The judgment of the court below is just and there is no error of law by misapprehending the legal principles on the validity of the judgment.
Therefore, this appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party.
This decision is consistent with the opinions of the involved judges.
The judge of the Supreme Court is Hong Dong-dong (Presiding Judge) and Dong-dong (Presiding Justice)