[약속어음금][공1990.7.1.(875),1233]
In cases where the holder of a promissory note whose endorsement is forged by the person under whose name the endorsement was made has lost his/her right to recourse to the bill against the person under whose name the endorsement was made in excess of the payment period, whether the holder can seek damages equivalent to the amount of the bill money against the person under whose name the endorsement was made due to his/her tort (negative)
The damage sustained by the holder of a promissory note, whose endorsement is forged by the person under whose name the endorsement was made, is believed to be genuine and to acquire the promissory note by means of fraud of the person under whose name the endorsement was made, is the damage sustained by acquiring the promissory note which is not able to seek performance of the obligation of recourse against the endorser. Therefore, the holder of the promissory note may claim the damage only to the extent that he is able to assume the responsibility of recourse. However, in a case where the holder of the promissory note whose endorsement was forged fails to present the payment within the period for presentment of payment and fails to meet the requirements of recourse, even though there was no tort committed by fraud, it is impossible to enforce the right of recourse to the promissorysory note against the person under whose name the endorsement was the one under whose name the endorsement was an employee, and thus, it shall not be allowed to claim payment of the amount of the promissory note or discount on the ground that it is the damage sustained by acquiring the endorsement with the belief that the endorsement was authentic.
Article 756 of the Civil Act, Articles 77(1)4 and 53(1) of the Bills of Exchange and Promissory Notes Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)
Attorney Lee Young-young et al., Counsel for the defendant-appellant
Gwangju Investment Finance Corporation, Attorneys Shin Jin-jin et al., Counsel for the defendant-appellant
Seoul High Court Decision 88Na23921 delivered on May 29, 1989
The appeal application is dismissed.
The grounds for an application for appeal
(1) The fact-finding and decision of the court below, which have been completed to conclude that the non-party 1, an agent of the president of the Seoul Office of the defendant company, cannot be a commercial employee with a partial comprehensive power of attorney of the defendant company, is proper, and there is no error of law by mistake of facts due to violation of the rules of evidence, such as the theory
(2) In acquiring the bill of this case, it is proper that the court below determined that the representative of the head of the Seoul office office of the defendant company did not have any justifiable reason or negligence to believe that Nonparty 1 had the right to make an endorsement of the name of the defendant in the above bill, in acquiring the bill of this case, which is the plaintiff's representative, and there is no error of law by misunderstanding the legal principles as to the legitimate reason, etc. in relation to the mistake of facts or the expression agency
(3) In the event that a bill is forged by an endorsement as if it was a bill with a forged endorsement, and the bill holder makes a presentment for payment at the maturity, even if the bill holder did not have the responsibility for the bill due to the physical changes in the above Article, so in this case, regardless of whether the holder of the bill had taken the action, the damage equivalent to the amount of the bill is conclusive, and therefore, it is irrelevant to the procedure for filing a lawsuit and the occurrence of damage.
However, even though an endorsement of a forged bill is believed to be genuine and has sustained losses by contributing money to acquire the bill, the damage is ultimately caused by the acquisition of a bill which is ultimately unable to compel the endorser to perform his/her duty of recourse. Thus, the holder of the bill can assert damages only to the extent that he/she can assume the responsibility for recourse (see Supreme Court Decision 74Da808, Dec. 24, 1974). According to the legal established by the court below, the plaintiff failed to present a payment presentation for the total face value of 21 billion won of the bill in its statement within the period of presentment for payment. Thus, even if there was no tort such as non-party 1, etc., such as the theory of lawsuit, even if the payment presentation period has expired, the plaintiff cannot seek the right of the bill in this case against the defendant company due to the loss of the right of recourse to the bill in this case, and therefore, it is impossible to claim the payment of the bill in this case by means of the true endorsement or discount of the bill in this case.
In the same purport, the lower court’s rejection of the Plaintiff’s assertion that the Plaintiff suffered damages equivalent to KRW 600 million in total amount of the face value of the Promissory Notes, which was changed in exchange for the claim for damages under the employer’s responsibility, is justifiable, and the said determination can be seen to the purport of rejecting the Plaintiff’s assertion that the Plaintiff suffered damages equivalent to the discounted amount among them. Therefore, there were no errors in the misapprehension of legal doctrine as to the establishment of tort committed by the Plaintiff’s principal and the endorsement with forged promissory notes, and the omission
(4) All of the arguments are dismissed without merit. It is so decided as per Disposition by the assent of all participating judges.
Justices Kim Yong-ju (Presiding Justice)