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(영문) 광주고법 1982. 6. 17. 선고 81나300 제1민사부판결 : 상고불허가

[약속어음금청구사건][고집1982(민사편),325]

Main Issues

Requirements for the exercise of right of recourse in blank Promissory Notes

Summary of Judgment

A blank promissory note shall lose its right of recourse against the person who has the right of recourse unless it is presented for payment within the lawful period of time for presentment.

[Reference Provisions]

Article 53 of the Bills of Exchange and Promissory Notes

Reference Cases

November 23, 1976, 76Da214 decided Nov. 23, 1976 (Articles 53, 53 (2), 765 of the Bills of Exchange and Promissory Notes Act, Canada 11371, house 2434, No. 551, 9626)

Plaintiff and appellant

Plaintiff

Defendant, Appellant

Defendant

The first instance

Jeonju District Court (80 Gohap457)

Text

The plaintiff's appeal and the preliminary claim in the trial are dismissed, respectively.

Expenses for appeal shall be borne by the plaintiff.

Purport of claim and appeal

The judgment of the first instance shall be revoked.

The defendant shall pay to the plaintiff the amount of 5,400,000 won with an annual interest rate of 6% from July 23, 1981 to the full payment day.

The judgment of the court of first instance that all the costs of lawsuit shall be borne by the defendant and the judgment of provisional execution is revoked (in addition to the purport of the preliminary claim in the trial, the first instance judgment shall be added).

The defendant shall pay to the plaintiff the amount of 5,400,000 won with 25% per annum from the day following the day when the copy of the preliminary claim added at the trial is served to the defendant to the day of full payment.

The costs of lawsuit shall be borne by the defendant in both the first and second instances, and provisional execution shall be declared.

Reasons

1. First, we judge the plaintiff's primary claim.

The purport of the Plaintiff’s assertion as the primary cause of the instant claim is ① The Nonparty issued to the Defendant, on October 17, 1979, one promissory note in blank, with a face value of KRW 3,000,000,000, with a face value of KRW 33,000,000, and the issue date of the said note as of December 31, 1979, with a blank space of KRW 2,40,000, the issue date, and KRW 2,400,000, the issue date of the promissory note as of December 31, 1979. The Defendant exempted the Plaintiff from the payment of each of the above promissory note with a face value of KRW 3,00,000,00,000, with a face value of KRW 17,000,000 for each of the above promissory notes with a face value of KRW 1,400,00,00 for each of the above promissory notes.

However, the contents of a promissory note under Article 75 of the Bills of Exchange and Promissory Notes Act must be stated in the promissory note. Among them, it cannot be effective as a bill unless the correction is made in accordance with special provisions. Thus, even in the case of the Plaintiff’s master book itself, as long as there was no person who presented a supplementary note for payment within a lawful period of time, the right of recourse against the Defendant, who is the person who is the person who is the person who is the person who is the person who is subject to the right of recourse, shall be deemed to have been lost. Therefore, the Plaintiff’s main

2. We examine the plaintiff's conjunctive claim at the next trial.

The plaintiff, as the conjunctive cause of the plaintiff's conjunctive claim, set forth the amount of 3,00,000 won on October 20, 1979 and the amount of 2,400,000 won on October 21, 199 following the day, and the interest rate of 3% on each month, and the due date of payment as of December 31 of the same year, respectively, and received a endorsement transfer of two promissory notes as the collateral from the defendant as to the main claim. Although each of the promissory notes was not effective as a bill because of the lack of the requirements for a bill, even if each of the promissory notes did not meet the requirements for a bill, the plaintiff's obligation to pay 5,40,000 won on each of the loans, which are the cause of the bill, to the defendant, and the defendant asserts that it reached the conjunctive claim, and there is no other evidence to prove that the testimony of the public health class, the witness at a higher level, alone, alone, is insufficient to acknowledge the fact of the plaintiff's assertion.

3. If so, the plaintiff's main claim and the conjunctive claim in the trial of the court are without merit, each of them is dismissed, and the judgment of the court of first instance on the main claim is just in conclusion with the party members and there is no ground for appeal by the plaintiff. Thus, each of the conjunctive claims added in the plaintiff's appeal and the trial of the court of first instance shall be dismissed, and the costs of appeal shall be borne by the plaintiff and

Judges Lee Jong-ho (Presiding Judge)