[채무부존재확인][공2003.3.15.(174),721]
Whether a financial institution’s failure to preserve the right to recourse against a bill acquired in the discount of a bill, and as a result, losses suffered by the purchaser due to aggravation of the issuer’s financial capacity after the due date is due to special circumstances (affirmative)
Even though a financial institution did not lawfully present the bill at the date of payment, and thus does not preserve the right of recourse, if a loss was incurred due to the aggravation of the financial capacity of the issuer of the bill after the due date due to the aggravation of the financial capacity of the issuer of the bill, if the purchaser of the bill is unable to receive any claim for the bill and the underlying claim against the issuer, then such loss shall be liable for compensation to the purchaser of the bill, who was aware or could have known that the financial institution, which did not perform its duty of presentation, will deteriorate the financial capacity of the issuer of the bill at the time of the due date of payment of the bill, due to the special circumstances such as aggravation of the financial capacity of the issuer, as the principal obligor,
Article 393(2) of the Civil Act, Articles 38 and 43 of the Bills of Exchange and Promissory Notes Act
Supreme Court Decision 86Da218 Decided October 28, 1986 (Gong1986, 3112), Supreme Court Decision 93Da12213 Decided October 13, 1995 (Gong1995Ha, 3746), Supreme Court Decision 95Da25060 Decided November 8, 1996 (Gong197Sang, 713)
Usung Steel Co., Ltd. (formerly changed: Jeong Steel Co., Ltd.) (Law Firm Han & Han, Attorneys Kim Jong-jin, Counsel for the plaintiff-appellant)
Korean Long-term Credit Bank Co., Ltd., a lawsuit taking over a Korean National Bank, a lawsuit taken over by a Korean National Bank.
Supreme Court Decision 99Da37504 Delivered on March 12, 2002
Seoul High Court Decision 2002Na18796 delivered on September 26, 2002
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
1. Although a financial institution failed to preserve the right of recourse due to the failure of the issuer to lawfully present the bill at the due date for payment, if the right of recourse to the bill becomes insolvent due to the aggravation of the financial capacity of the issuer after the due date for payment, it is nothing more than the loss incurred by the issuer due to the impossibility of the issuer to receive any claim for the bill and the underlying claim. Such loss shall be liable for damages to the purchaser of the bill, who was aware or could have known that the financial institution, which failed to perform its duty to present the bill due to the special circumstances, the aggravation of financial capacity of the issuer, which is the primary debtor, would deteriorate the financial capacity of the issuer at the time of the due date for payment.
2. The court below rejected the plaintiff's assertion that the non-party bank was unable to present payment of the bill of this case at discount after the plaintiff lost the bill of this case, and the non-party non-party non-party non-party 1 corporation (hereinafter "non-party 1 corporation"), the issuer of the bill of this case, and the plaintiff's non-party 1 corporation suffered losses from the non-party 1 corporation's claim for payment of the bill of this case, even if the bill of this case were redeemed and delivered, the non-party 1 corporation cannot exercise its duty of due care. Thus, the court below rejected the plaintiff's assertion that the non-party 1 corporation's claim for damages against the plaintiff 1 was non-party 1's automatic bond of this case and the non-party 2 corporation's non-party 1 corporation's non-party 1 corporation's loss of the bill of this case's duty of due to the plaintiff's non-party 1's non-party 1's non-party 1 corporation's non-party 2500 won's loss of this case's bill.
The grounds of appeal are not accepted.
3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Song Jin-hun (Presiding Justice)