[약속어음금][하집1997-2, 318]
In a case where the wife received a bill from the husband who is the last endorser of the bill, whether the obligor may set up against the wife a personal defense against the husband (affirmative)
The principle of the delegation of human defense under the Bills of Exchange and Promissory Notes Act is fundamental purpose of guaranteeing the free circulation of a bill, so even in cases where the free circulation of a bill is not infringed, the obligor's sacrifice should not be required by applying the principle without any condition. Thus, in cases where the wife receives the bill from the husband who is the last endorser of the bill as living expenses, even though the wife knew that it would prejudice the former endorser who is the latter obligor, it is reasonable to view that the former endorser may oppose the wife as his personal defense against the husband even if he did not receive the bill.
Article 17 of the Bills of Exchange and Promissory Notes Act, Article 2 of the Civil Act
Plaintiff (Attorney Jeong-dae et al., Counsel for plaintiff-appellant)
Defendant
Jeju District Court Decision 95Da16423 delivered on June 12, 1996
Supreme Court Decision 97Da36477 Delivered on November 12, 1997
The plaintiff's appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff.
The judgment of the court below is revoked. The defendant shall pay to the plaintiff 30,000,000 won with six percent per annum from August 22, 1995 to the delivery date of a copy of the complaint of this case, and twenty-five percent per annum from the next day to the full payment date.
According to Gap evidence 1-1, 2 (the face of the Promissory Notes and back) each statement, the non-party 1 (the representative director of the non-party 2 corporation) issued non-party 2 as the addressee of the Promissory Notes No. 1 (the Promissory Notes No. 2) at the face value 30,000,000 on May 25, 1995, the place of issue and the place of payment, the Bank of Korea at the place of payment, the date of payment, the Bank of Korea at August 22, 1995, and the Promissory Notes No. 1 (the Promissory Notes No. 2; hereinafter the same shall apply) at the commencement of the above non-party 2 corporation, the said Promissory Notes No. 2 corporation and the non-party 3 corporation were finally endorsed and endorsed, and the plaintiff could be found to have been refused to pay the Promissory Notes. Therefore, the defendant, the endorser, barring any special circumstances, is obligated to respond to the plaintiff's claim for the Promissory Notes.
In light of the above facts, the defendant's defense against the non-party 1's non-party 2's above 1's 6 receipts, Eul's 4's 6's 4's 6's 6's 6's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 9's 1's 9's 1's 6''''''''''''''''''''''''.
Meanwhile, the fact that the Plaintiff received on April 20, 1996 from the Plaintiff on May 8, 1996, and the fact that the Defendant presented a promissory note of KRW 20,000,000 at the face value of the issuance of the non-party 3 corporation as a documentary evidence at the date of the second pleading of the court below is clear in the record that the Defendant presented the promissory note of KRW 20,00,00 at the face value of the issuance of the non-party 3 corporation as a documentary evidence.
Therefore, according to the above-mentioned defense against the above non-party 3 corporation, the time when the plaintiff acquired the bill of this case was around August 1995, and the time when the plaintiff did not have any claim against the non-party 3 corporation, so even if the plaintiff viewed the company's accounting date, it cannot be deemed that the plaintiff acquired the bill of this case with the knowledge that it would prejudice the defendant. Therefore, the plaintiff does not constitute a person who acquired bad faith under the proviso of Article 17 of the Bills of Exchange and Promissory Notes Act. In addition, there is no evidence that the non-party 6, who is the plaintiff's husband, committed the defendant's personal defense against the plaintiff in order to collect the bill of this case while avoiding the defendant's personal defense against the company. However, since the principle of personal defense under the Bills of Exchange and Promissory Notes Act aims to guarantee free circulation of the bill of this case, it should not be required to make the sacrifice of the debtor by applying the principle without any condition even if the free circulation of the bill of this case was not infringed.
Meanwhile, the Plaintiff and Nonparty 2 Co., Ltd. entered into a subcontract with KRW 165,00,000 for construction cost, and the Defendant guaranteed payment for the above construction cost against Nonparty 2 Co., Ltd., and the above Nonparty 2 Co., Ltd. still remains unpaid construction cost of KRW 25,00,000 for Nonparty 3 Co., Ltd., and thus, the Defendant asserts that even if the Defendant had a claim against the Plaintiff against the Plaintiff against the Plaintiff, the above amount equivalent to the above amount should be offset. However, as evidence consistent with the Plaintiff’s assertion that the Plaintiff guaranteed the obligation for construction cost of Nonparty 2 Co., Ltd., it is merely a document to the effect that the Defendant would be liable for the endorser following the default of the payment for the bill, and it is insufficient to acknowledge the Plaintiff’s assertion, and there is no other evidence to acknowledge this otherwise except for part of Nonparty 6’s testimony not trusted above, this part of the Plaintiff’s assertion on this premise is without merit.
Therefore, the plaintiff's claim of this case against the non-party 3 corporation of this case is set off at an equal amount of 48,100,000 won with the defendant's claim against the non-party 3 corporation, and the plaintiff's claim is not payable at all. Therefore, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court below is just in conclusion, and it is dismissed as it is so decided as per Disposition.
Judges Kim Yong-ho (Presiding Judge)