[1] Reversion of the right to claim the return of the accident reported security deposit

[2] Whether a set-off by a payment bank with a claim for accident reported security constitutes an abuse of rights in relation to a legitimate holder of a right on a bill (affirmative)

[1] One of the cases where a paying bank pays a security money to the issuer of a bill under the clearing-house agreement and a written agreement for the disposal of a security money for reporting accidents between the payer and the issuer of the bill. "No interested person has submitted to the paying bank a document proving that the relevant bill is pending in the lawsuit, and six months have passed since the date of the presentment for payment." However, this does not mean that the right to claim the return of the security money for reporting accidents is definitely reverted to the issuer of the bill due to the occurrence of such cause, but if the issuer of the bill claims the return of the security money on the ground of such cause, the paying bank is exempted from the responsibility of returning the security money for reporting accidents under the agreement by paying the security money to the issuer of the bill, and furthermore, it is nothing more than the fact that the paying bank can legally set up against the lawful holder of the bill. Even if six months have passed after the date of presentment for payment, if the issuer is proved to be the lawful holder of the bill and the payer bank expressed its intent to return the security money, the holder shall be entitled to claim

[2] In light of the purport and legal nature of the accident declaration security deposit system, where a bill holder is proved to be a legitimate right holder on a bill, a payment bank that deposited the security deposit shall, in principle, pay the bill to him/her, and even if the bill holder is proved not a legitimate right holder, returning the bond to the issuer before it is proved not to be a legitimate right holder or offsetting the bond against him/her does not go against the purport that the accident declaration security deposit was made to be deposited as a separate deposit. Thus, the offset against the payment bank that deposited the deposited bond would be null and void as it abuse the right of offset in relation to the relevant bill holder, where it is proved that he/she is a legitimate right holder on a bill, and even if the payer did not submit to the payment bank a document proving that the bill holder is still under litigation within six months from the due date, and even if the payer requested the payment of the bond after the offset disposition.

[1] Articles 539 and 702 of the Civil Act / [2] Articles 2, 492, 539, 541, and 702 of the Civil Act

[1] [2] Supreme Court Decision 93Da61000 delivered on April 15, 1994 (Gong1994Sang, 1442), Supreme Court Decision 94Da16816 delivered on October 21, 1994 (Gong1994Ha, 3069) / [1] Supreme Court Decision 92Da54272 delivered on June 8, 1993 (Gong193Ha, 200) / [2] Supreme Court Decision 92Da25540 delivered on October 27, 1992 (Gong192, 3286)

Plaintiff (Attorney Choi Sung-ho, Counsel for the plaintiff-appellant)

Han-il Bank (Law Office, Attorney Jin-hun et al., Counsel for the defendant-appellant)

Seoul High Court Decision 95Na26119 delivered on September 28, 1995

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

The First Ground for Appeal

The purpose of the system is to prevent abuse of report by the issuer of a bill in order to avoid default and to guarantee the payment of the bill in cases where the rights on the bill are verified, as well as to return the above bond at any time when it is proved that the holder of the bill is a legitimate holder on the bill, i.e., the Seoul Bills of Exchange and Promissory Notes and the agreement for handling the reported amount of the bill with the defendant and the non-party 1 who is the issuer of the bill, even though the defendant pays the above bond to the above non-party, unlike the general deposit claims, it is a kind of deposit in the paying bank. However, unlike the general deposit claims, the issuer of the bill does not conceal the shortage of funds for the bill and avoid disposition on default. Therefore, the payment of the bill in question is the principle to return the bond at any time when it is proved that the bill holder is a legitimate holder on the bill. It is only 90 months from the date when the plaintiff presented the right to claim the return of the bill in question to the issuer on the ground that it was 90 months after the above declaration of the bill.

In the same purport, the court below is just in holding that the defendant, a payment bank, should return the amount of the accident report security to the plaintiff, which is proved to be the legitimate right holder of the bill of this case by the final judgment, and there is no error of law by misapprehending the legal principles on the reversion of the right to the claim for the return of the accident

The Second Ground of Appeal

In the reasoning of the judgment below, the court below did not submit a document proving that the bill was in progress for six months from the date of presentment for payment, and that the certificate of reported security was not definitely reverted to the issuer. As seen above, the issuer of the bill can claim the return of the above security on the ground of such ground, but the holder of the bill has the right to claim the payment of the bill when it is proved that the bill is a legitimate holder of the bill and the holder of the bill declared profits to the payment bank during the period of not claiming the return of the security money, and it does not mean that the drawer of the bill is not the claimant for the right to claim the payment of the bill, such as the theory of lawsuit, and therefore, it cannot be accepted

As to the third ground for appeal

In light of the above purport and legal nature of the system of the accident declaration security deposit and the above security deposit, if the holder of the bill is proved to be a legitimate holder on the bill, it is in principle to pay the above security deposit to him, and it is against the purport that return the bond to the issuer before it is proved to be not a legitimate holder on the bill or offsetting the bond with the opposite holder on the separate deposit account. Thus, the offset against the deposit is null and void as it abuse the right of offset in relation to the relevant bill creditor who is proved to be a legitimate holder on the bill. This is also the same even if the payer requested the payment of the bond after the payment bank conducted offset disposition (see Supreme Court Decision 92Da25540, Oct. 27, 1992; Supreme Court Decision 9Da2540, Oct. 27, 1992; Supreme Court Decision 2003Da65475, Jun. 28, 209).

In the same purport, the court below is just in holding that a set-off by the defendant with the claim for return of the accident reported security bond in relation to the plaintiff, who is the holder of the bill of this case, is invalid because it abused the right to set-off, and there is no violation of law by misunderstanding the legal principles of abuse of rights. The argument is not acceptable as it criticizes the judgment of the court below on the premise of a different opinion

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 Lee Jae-soo (Presiding Justice)