Whether a claim for a check is permissible as a future performance lawsuit on the condition that the revocation judgment becomes final and conclusive (negative)

In principle, a claim for a check on the condition of a final judgment cannot be deemed as satisfying the requirements of a lawsuit for future performance, and the examination of a claim for a check in accordance with the outcome of a lawsuit for objection to a judgment of nullification is likely to be biased, and that the Defendant of a lawsuit for a claim for a check that must be protected against the case of acceptance of a lawsuit for objection to a judgment of nullification is also subject to excessive burden on the Defendant of the lawsuit for a claim for a check which must be protected against the case of acceptance of a lawsuit for objection to a judgment of nullification.

Articles 251 and 490 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Attorney Kim Young-chul et al., Counsel for the plaintiff-appellant)

NongHyup Co., Ltd. and two others (Law Firm No. & one other, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na73552 decided March 29, 2012

Of the judgment below, the part against Defendant 2, Nonghyup Bank Co., Ltd. and Defendant 2 is reversed, and that part of the case is remanded to Seoul High Court. Defendant 3’s appeal is dismissed. The costs of appeal by Defendant 3 are assessed against the above Defendant.

The grounds of appeal are examined.

1. Determination on Defendant 2’s grounds of appeal

According to the reasoning of the judgment of the court below, the court below determined that the claim of this case is permitted as a future performance suit on conditional claims under the condition that the plaintiff's lawsuit of objection against nullification judgment is accepted in the cause of the claim, on the premise that the plaintiff's lawsuit of objection against nullification judgment is accepted, and thus, it constitutes a future performance lawsuit, and it is also necessary to claim in advance in regard to the claim for payment of the check money by the National Agricultural Cooperative Federation and the defendant 2.

However, we cannot accept the above determination by the court below for the following reasons.

In principle, a claim for a check on the condition of a final and conclusive performance shall become effective only after the judgment becomes final and conclusive (see Supreme Court Decision 2003Da6200, Jan. 27, 2004). In addition, in a situation where the final and conclusive judgment on a judgment of nullification is uncertain, it is difficult to deem that a claim for a check on the condition of a final and conclusive performance satisfies the requirements for a lawsuit for future performance, and the review of a claim for a check is unlikely, depending on the outcome of a lawsuit for objection to a judgment of nullification, and it is difficult to readily allow the Defendant of a claim for a check that must defend against the case of acceptance of a lawsuit for objection to a judgment of nullification, in that it imposes an excessive burden on the Defendant of the claim for a check that is to defend against the case of acceptance of the lawsuit for a judgment of nullification.

Nevertheless, the judgment of the court below that the claim for the check of this case is permitted as a lawsuit for future performance under the condition that the judgment of revocation becomes final and conclusive, is erroneous in the misapprehension of legal principles as to the nature of a lawsuit against nullification judgment, whether a formative lawsuit and a lawsuit for performance are joined, and the requirements for future performance lawsuit are satisfied, which affected the conclusion of the judgment. The ground of appeal by the defendant

2. Determination on Defendant 3’s grounds of appeal

A. As to the first ground for appeal

A lawsuit of objection against a nullification judgment on the grounds of Article 490(2)7 of the Civil Procedure Act (when a judgment of nullification has been obtained by falsity or other fraudulent means), may be brought within one month from the date on which the plaintiff becomes aware of such grounds pursuant to Article 491(1) and the proviso to Article 491(3) of the same Act.

The lower court, on October 1, 2009, determined that the lawsuit of objection against the instant nullification judgment filed on November 5, 2009, which was not more than one month thereafter, was lawful, on the ground that it is difficult to view that the Plaintiff knew of the existence of the instant nullification judgment, by itself, that there was a ground stipulated in Article 490(2)7 of the Civil Procedure Act, and that the Plaintiff knew that Defendant 3 was subject to the instant nullification judgment only when the Plaintiff directly inspected the instant nullification judgment on October 6, 2009.

In light of the records, the above judgment of the court below is just, and there is no error of law by misapprehending the legal principles as to the period of filing a lawsuit against nullification judgment, contrary to what is alleged in

B. Regarding ground of appeal No. 2

Even if the former holder of securities or certificates loses the possession of securities, etc. without his own intention, if it is found that a specific person holds the securities, etc. thereafter, the former holder shall request the present holder to return the securities, etc., and the public summons therefor is not allowed. If the former holder, as he knows, was present on the date of the public summons and state his intention to seek the cause and nullification judgment as if he knows his whereabouts, and deceptions the public summons court, and if it was subject to the judgment of nullification from the public summons court, it constitutes “when the judgment of nullification has been obtained by any false or unjust means” under Article 490(2)7 of the Civil Procedure Act (see Supreme Court Decisions 97Da16985, Jul. 25, 1997; 2004Da4645, Nov. 11, 2004, etc.).

The court below acknowledged the facts as stated in its reasoning based on the adopted evidence, and determined that the check of this case is based on Defendant 2’s intention and is not subject to the procedure of public summons because it does not constitute stolen, lost, or destroyed securities, and thus, it constitutes “when the judgment of nullification has been obtained by false or unjust means” as stipulated in Article 490(2)7 of the Civil Procedure Act, since Defendant 3 deceptions the court of public summons as if it was lost by holding the check of this case.

In light of the above legal principles and records, the fact-finding and judgment of the court below are just and acceptable, and contrary to what is alleged in the grounds of appeal, there were no errors by violating the law of logic and experience and exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending

3. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal by the Nonghyup Bank Co., Ltd. (hereinafter “Defendant Bank”), which is the lawsuit of Defendant National Agricultural Cooperative Federation, the part of the judgment below against Defendant Bank and Defendant 2 is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 3’s appeal is dismissed, and the costs of appeal by Defendant 3 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)