Korean Veterans Association (Law Firm Southern River, Attorneys Lee Lee Ho-ho et al., Counsel for the defendant-appellant)

Han Bank Co., Ltd. (Law Firm Democratic, Attorneys White-Name et al., Counsel for the plaintiff-appellant)

March 17, 2015

Seoul Central District Court Decision 2013Gadan93218 Decided June 27, 2014

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 10 million won with 20% interest per annum from January 11, 2013 to the day of complete payment.

2. Purport of appeal

It is as set out in paragraphs 1 and 2 of this Decree.

1. Basic facts

(a) The cover note;

1) The cover note refers to the original bill (commercial bills or trade bills) held at a discount by the bank, etc., which is newly issued by the purchaser in the future, by dividing or consolidating the original bill (commercial bills or trade bills) held by the bank, etc. In this case, the issuer shall be the bank, etc.. In this case, the Promissory Notes Act shall apply, unless there is a special transaction agreement, to a bill issued at a discount or on instruction, within the extent of the amount obtained by subtracting the balance of general sales from the balance of discount of commercial bills or trade bills. Accordingly, the purchase of a cover note issued by a financial institution at a discount by investors constitutes the discount of

2) Where a cover bill is issued in real, the holder of the cover note shall request the bank to exchange the cover note no later than one business day before maturity, and where the bank of the holder of the cover note refers the exchange of the cover note to the clearing-house on a business day before maturity one day before maturity, the clearing-house shall notify the bank of the issuer of the cover note of the details of the request for balance settlement to the bank of the issuer of the cover note, and the bank of the issuer of the cover note shall terminate reimbursement by transferring the funds to the bank of the holder of the cover note through the Bank of Korea when the bank of the issuer of the

3) If a cover bill is issued in real form, not in the form of a passbook, the bank, etc. does not issue a certificate of deposit balance, and the cover bill is able to distribute as in the form of a certificate of transfer deposit, and thus, it is impossible to compare the seal impression with the bank transaction application.

(b) Action to issue a cover note and claim the amount from the holder;

1) On April 12, 201, the Defendant issued two copies of a cover note indicating the issuer, the Defendant, the face value of KRW 1,002,54,453, and the discount sales of KRW 1 billion (hereinafter “the Promissory Notes”), and delivered it to studio at the request of studio, and kept two separate accounts (one bank, account number (Account No. 1 omitted), and (Account No. 2 omitted; hereinafter “instant account”). The Defendant kept two billion won of the cover note received from studio in two separate accounts (one bank, account number (Account No. 1 omitted), and (Account No. 2 omitted), respectively.

2) On May 16, 2011, Nonparty 1 and Nonparty 2 filed a lawsuit seeking payment of the Promissory Notes against the Defendant (Seoul Central District Court Decision 201Da188396, hereinafter “instant lawsuit”) as Nonparty 1 and Nonparty 2 received endorsement and assignment of the Promissory Notes, and the payment was refused.

3) The studio participated in the instant lawsuit as the Defendant’s assistant intervenor and issued a promissory note of KRW 2 billion on the condition that Nonparty 3, the representative director of the studio received KRW 2 billion from Nonparty 4, etc. and did not distribute the promissory note to Nonparty 4, etc. In substitution for the instant bill, it was endorsed and transferred. Nonparty 4 et al. distributed the instant bill upon entering into an agreement with Nonparty 4, and Nonparty 1 and Nonparty 2 knowingly acquired the instant bill. Thus, the Defendant asserted to the effect that the instant bill can be asserted against Nonparty 1 and Nonparty 2 on the ground that the transfer contract of management rights, such as the cause party, was terminated. However, on October 31, 2011, Nonparty 1 and Nonparty 2 acquired the instant bill with the knowledge of the absence of the obligation to pay the face value of the bill, etc., and Nonparty 2 was dismissed on the ground that Nonparty 1 and Nonparty 2’s judgment was rejected on the ground that Nonparty 2’s refund of the bill was lawful.

4) On September 4, 2012, the Defendant, Nonparty 1, and Nonparty 2 set-off the Defendant’s bill-free payment obligation against Nonparty 1 and Nonparty 2, and the provisional payment obligation against Nonparty 1 and Nonparty 2, and Nonparty 1 and Nonparty 2 reached an agreement on the settlement of accounts with the Defendant to return the difference to the Defendant, and the Defendant collected the deposit money. The Defendant recovered the deposit money on September 5, 2012.

C. The collection order of this case

1) The Plaintiff was sentenced to a favorable judgment of the Seoul Central District Court (Seoul Central District Court 2012Gahap2427) on July 5, 2012 that “studio shall pay to the Plaintiff 2 billion won and the amount calculated at the rate of 20% per annum from December 15, 2011 to the date of full payment,” and the judgment became final and conclusive.

2) On January 9, 2013, based on the foregoing final judgment, the Plaintiff received the order of collection and seizure (hereinafter “instant collection order”) against the deposit claims on the instant account from the Jung-gu District Court High Court 2012 Tayang Branch 16219, and the instant collection order was served on January 11, 2013.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 8, Eul evidence Nos. 1 through 4 (including partial numbers), and the result of the order to submit financial transaction information to a single bank of the first instance, the purport of the entire pleadings

2. The parties' assertion and judgment

A. The parties' assertion

The plaintiff claims payment of KRW 100 million out of the collection amount according to the collection order of this case on the premise that the deposit claim of this case in the account of this case actually exists, while the defendant claims payment of KRW 100 million out of the collection amount according to the collection order of this case on the other hand, since the account of this case is merely opened for business convenience, there is no deposit claim. ② Even if there is a deposit claim, the deposit claim of this case was extinguished due to the payment of the bill before the delivery of the collection order of this case to the defendant. ③ The deposit claim of this case in the account of this case is simultaneously performed with the issuance of the bill of this case, and the plaintiff did not deliver the bill of this case, and the plaintiff cannot pay the bill of this case. ④ When the defendant deposited the bill of this case with the bill of this case,

B. Determination

In light of the following circumstances acknowledged based on the evidence stated in the facts or the above, ① issuance of a cover note is a discount of a bill, and the discount of a bill is a sale in its legal nature, so the Defendant’s issuance of the Promissory Notes shall be deemed a sale in the Promissory Notes. ② The Defendant’s opening of the Account in the instant case is internally established according to the business convenience for the payment of the amount of the Promissory Notes or the need for settlement of the transaction amount, and accordingly, the Defendant did not obtain the seal or signature of this room, which is the deposit owner, unlike the ordinary deposit account. Thus, the account in the instant case is merely an establishment for the payment management of the amount of the Promissory Notes, and it cannot be deemed that the deposit contract was concluded or the deposit claim actually exists

3. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit. The judgment of the court of first instance is unfair with different conclusions, and thus it is revoked, and the plaintiff's claim is dismissed.

Judges Lee Sung-gu (Presiding Judge)