[2] The scope of "third party" under Article 126 of the Civil Code as an expression agent for a bill or check

[3] The party to the claim for return of unjust enrichment in a case where the presenting bank refuses to accept the notice of default on the account of the fact that the issuing bank has already paid the amount of the check after the due date of notice of the outstanding bill of exchange on the cashier's check collected by the presenting bank through the clearing of bills

[4] Whether the presentation bank, which received a check, neglected to conduct prior inquiry as to whether the check constitutes an accident check constitutes a tort against the payment bank (negative)

[2] Article 126 of the Civil Code concerning expression representation refers only to the person who is the direct counterpart to the act of expression representation, and it shall be interpreted equally in cases where the above provision applies or analogically applies to the validity of the act of expression and check by the expression representation.

[3] In cases where a presenting bank collects cashier's checks through the clearing-house of a clearing-house, if the check cannot be settled, the paying bank shall notify the presenting bank of the reasons for such collection, and as a result, the check cannot be returned without notification by the due date. As a result, using the check amount deposited in the presenting bank as the funds for clearing-out of promissory notes and the check amount in the name of depositors, the receipt of the check amount and the presentation bank requested collection shall, as a result, guarantee the legality of the execution of the check amount based on the result of collection and clearing-over of the check amount in accordance with the clearing-house agreement. Payment of the check amount is merely based on the contribution of the paying bank, and the presentation bank shall not be deemed to have obtained unjust enrichment from the paying bank, and as such, the paying bank shall not be deemed to have received unjust enrichment from the paying bank, notwithstanding the fact that the check was forged, and as a result, it cannot be deemed to have received from the paying bank due to the presentation of the remaining funds due to the payment of the check amount. Therefore, it shall not have actually suffered losses from the paying bank.

[4] A prior inquiry as to whether an accident check was issued is merely a measure to prevent a bank from causing damage to its appearance when a forged or altered check was paid. Thus, even if the presenting bank which received the check neglected to inquire about the accident check, it does not constitute a tort against the paying bank.

1. According to the reasoning of the lower judgment, the facts and determination that the lower court recognized by comprehensively taking account of the evidence adopted in its judgment are as follows.

A. On May 31, 1993, Nonparty 1 conspired with Nonparty 4 who has the director of the general affairs division of Nonparty 2's non-party 3's non-party 2's loan branch office's 0:00,000 cashier's checks issued 90,000 won in the name of non-party 2's company's separate deposit account and delivered them to the non-party 40,000 won in cash and 4,50,000 won in the name of the non-party 2's bank's own account, the non-party 2's agent's name 90,000 won in the name of the non-party 3's bank's bank's 90,000 won in the name of the non-party 3's bank's 90,000 won in the name of the non-party 2's bank's 90,000 won in the name of the non-party 2's bank's account book.

In the current accounts of the Defendant Bank’s business branch, Nonparty 4, etc. issued in the name of Nonparty 2, presented a promissory note and a check number of shares at KRW 451,535,550, and used five copies of the instant check for exchange settlement funds without inquiring the Plaintiff bank, the issuing bank. On June 1, 1993, at the Plaintiff Bank’s Seoro branch, the Plaintiff bank received a presentation for payment of the instant check through the Plaintiff’s head office of the Plaintiff bank at Daegu-gu Clearing Bank on the basis of a bill exchange procedure at around 13:30, June 1, 1993. On the same day immediately before the closing of the notice of the default on payment, at around 14:28, the bank’s face value on the said electronic ledger and the face value of the instant check was found to be different, and at around 14:39, the Plaintiff bank’s closing account at around 14:40,000, and the Plaintiff bank’s closing account at around 14:40,0, respectively.

B. According to the above facts, the court below held that the check of this case was forged by Nonparty 1 without paying the face value of 450,000,000 won, and 445,500,000 won calculated by deducting the amount of 4,50,000 won deposited in Daejeon from the check, but was paid to the defendant through a bill exchange, barring special circumstances, the defendant had a duty to return it to the plaintiff. Thus, the defendant had a duty to return it to the plaintiff. The defendant also sustained damages of 445,50,000 won due to the act of forging the check of this case as seen above by Nonparty 1, who is an employee, but the defendant was also negligent in incurring damages to the defendant, and thus, the plaintiff is liable to return the above amount of 267,30,000,000 won (4,500,000 won and the remaining amount of compensation x 300,500,000 won (the above amount of compensation x 3000,5000).

2. As to the supplement of the grounds of appeal among the Defendant’s grounds of appeal Nos. 1, 2, and 3 and supplemental appellate brief entry

A. On the first ground for appeal

As long as the facts of this case are as determined by the court below, it is clear that Nonparty 1 did not have the authority to issue the check as an agent for the loan of the Plaintiff bank Seo-ro branch. Thus, the issuance of the check cannot be deemed as falling under the above Article of the check. The judgment of the court below to the same purport is just, and it is not erroneous in the misapprehension of legal principles as to the above Article of the check. The ground of appeal pointing this out cannot be accepted.

B. On the second ground for appeal

The third party referred to in Article 126 of the Civil Act concerning representation refers only to the person who has become the other party to the act of expression, and it shall be interpreted equally in cases where the above provision applies or analogically applies to the validity of the act of expression by an expression agency (see Supreme Court Decision 84Meu2310, Sept. 9, 1986). The court below's rejection of the defendant's assertion with the same purport is justifiable, and there is no error of misapprehending the legal principles concerning the act of expression and the representation, or failing to exhaust all necessary deliberations. The grounds for appeal pointing this out shall not be accepted.

C. As to the supplement of the ground of appeal Nos. 3 and the supplemental appellate brief

Article 1 of the Daegu Bills of Exchange and Promissory Notes (amended by Presidential Decree No. 1991, Feb. 8, 191) provides that "this Code shall aim to facilitate smooth exchange, settlement and financial transaction order of the Daegu Bills of Exchange and Promissory Notes (hereinafter referred to as the "Exchange") established and operated by the Clearing Board (hereinafter referred to as the "Exchange Board") in accordance with subparagraph 1 of Article 4 of the Articles of Incorporation of the Financial Clearing Board (hereinafter referred to as the "Exchange Board")," and Article 62 (1) provides that "the purpose of this Code shall be to facilitate smooth exchange, settlement and settlement of bills and certificates (hereinafter referred to as the "bill")," and Article 60 (1) provides that "the due date of default on payment of bills shall be 0 days before the date of exchange or exchange of bills, and the due date shall be 2 days before the end of the exchange or exchange of bills, and the due date shall be 3 days before the expiration of the exchange or exchange of bills, and the due date shall be 10 days after the exchange or exchange of bills, and the due date shall be 16 days before the due date.

Therefore, as determined by the court below, the defendant bank, as the presenting bank, collected the check of this case through the exchange of Daegu Bills of Exchange. Thus, if the check cannot be settled, the plaintiff bank, as the presenting bank, shall notify the presenting bank of the reason and shall not return the check of this case without notification by the due date. As a result, the check of this case shall be financed. The defendant bank's use of the check of this case in the exchange of the face value of 451,535,550 won and the face value of 451,550 won issued in the name of the non-party 2, which the non-party 4, etc. presented the face value of the check of this case in the exchange of the face value of the check of this case, as a result, the collection and exchange of the check of this case in accordance with the Daegu Bills of Exchange of Bills of Exchange and Promissory Notes, and the payment of this amount shall be made in full view of the collection and settlement results of the check of this case, and the defendant bank shall not have any damage to the non-party 2.

On the contrary, the Plaintiff bank could not return the check of this case to the Defendant bank even though it was a forged check, and thereby suffered losses equivalent to the settlement money. However, as seen above, the Defendant bank, as the presenting bank, cannot seek restitution of unjust enrichment against the Defendant bank. However, Nonparty 2, as the depositee of the check of this case, could not recover the check of this case from the Defendant bank, despite Article 64 (1) of the above Code, although the check of this case was forged and cannot be collected actually, the Plaintiff bank, as the payer of the default check of this case, could not return it to the Defendant bank, and the Plaintiff bank, as the payer of the check of this case was unable to recover the settlement money, received the payment of the check money from the Defendant bank, which is the presenting bank. Accordingly, the Plaintiff bank shall seek restitution of unjust enrichment equivalent to the settlement money of this case from the Plaintiff bank due to social norms, and therefore, the Plaintiff bank cannot seek restitution of unjust enrichment with respect to Nonparty 2 (see Supreme Court Decision 90Da16690, Jun. 16, 2009).

Nevertheless, the court below held that the Defendant is obligated to return the amount equivalent to KRW 445,500,000 remaining after deducting the amount of KRW 4,500,000 deposited into the Daejeon, as unjust enrichment. Thus, the court below did not err by misapprehending the legal principles as to the establishment of the obligation to return unjust enrichment by failing to consider the Daegu Bills of Exchange and Promissory Notes, which affected the conclusion of the judgment. The part of the grounds of appeal assigning this error is with merit.

3. Of the Plaintiff’s grounds of appeal, the part concerning employer’s liability and comparative negligence, and the Defendant’s ground of appeal No. 4

As seen earlier, inasmuch as the Plaintiff’s right to claim restitution of unjust enrichment against the Defendant is not recognized, the Plaintiff’s ground of appeal and the Defendant’s ground of appeal, which purport that, under the premise that the Plaintiff’s right to claim restitution of unjust enrichment against the Defendant was established, partially accepting the Defendant’s counterclaim of offset, erred by mistake of facts or by misapprehending the legal principles relating to employer liability and comparative negligence

4. As to the part of the Plaintiff’s ground of appeal on the nature of tort

A prior inquiry as to whether an accident check is a tort is justifiable and it cannot be said that there was an error of misapprehension of the legal principles as to a tort, even if the court below neglected to inquire about the accident check, since it is merely a measure to prevent the bank from causing damage if it pays forged or altered checks. The grounds of appeal pointing this out cannot be accepted.

5. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion, and the Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)