Liability for the cause of the endorser's obligation, which has been endorsed as a security with respect to Promissory Notes issued for the purpose of borrowing money

An endorser who has endorsed on the said Promissory Notes in a manner that guarantees the money borrowed in the manner of discount of the bill, knowing that the drawer of the Promissory Notes knowingly borrowed the money, shall bear the responsibility of joint and several sureties for the said debt

Article 428 of the Civil Code, Article 15 of the Bills of Exchange and Promissory Notes Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 2 others (Law No. 1106, Jul. 2, 1986)

Kim Jap-be

200 20 200

Seoul Central District Court (85 Gohap4649) in the first instance trial

1. Of the part of the judgment below against the defendant, the part ordering payment exceeding 50 million won per annum from June 8, 1985 to January 19, 1987 and the part ordering payment exceeding 25 percent per annum from the next day to the date of full payment shall be revoked and the plaintiff's preliminary claim as to the revoked part shall be dismissed.

2. The defendant's remaining appeal is dismissed;

3. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.

The defendant shall pay to the plaintiff 50,000,000 won with 25% interest per annum from the next day of the service of the copy of the guarguing to the day of complete payment.

The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.

The judgment of the court below shall be revoked.

The plaintiff's claim is dismissed.

Litigation costs are assessed against all of the plaintiffs in the first and second instances.

1. Judgment on the main claim

A. The plaintiff asserts that the defendant company issued two promissory notes with the face value of KRW 20,00,000 and KRW 30,000,000 as stated on May 14, 1985 at the place of issue and payment on February 5, 1985 by the non-party company (limited to the non-party company) as the primary cause of claim in this case, and the non-party company issued two promissory notes with the defendant company as the addressee, and exempted the defendant company from the duty to prepare the certificates of non-payment, each of the above two promissory notes on February 8, 1985, and each of the above bills was presented by the legitimate holder of each of the above bills and presented each payment at the above payment date, but refused to pay each of these bills, the plaintiff asserts that each of the above promissory notes was claimed by exercising the right of recourse against the defendant, who is the endorser of each of the above bills.

Therefore, in light of the whole purport of the oral argument as to Gap evidence 1-2, Gap evidence 2-2, Eul evidence 1-2 (in the case of each Promissory Notes), Eul evidence 1-2 (in the case of each Promissory Notes), the original existence and establishment of Eul evidence 3 (in the case of each Promissory Notes), Gap evidence 1-1 and evidence 2-1 (in the case of each Promissory Notes), for which there is no dispute over the remainder other than each due date, the non-party company's each payment date of February 5, 1985 shall be deemed to have been dated May 4, 1985, and the remaining issue date, the place of issue, the payment, the place of payment, and the face value of each Promissory Notes identical to each of the above plaintiffs shall be issued as the defendant company respectively, and the defendant company's each endorsement as of February 28, 1985 shall be deemed to have been delivered as the defendant company, and the court below's judgment below shall not be justified otherwise and it shall be justified.

B. However, the non-party company issued each of the above bills in full view of the following facts: Eul evidence Nos. 1 and 3, and Eul evidence Nos. 2 (the issuance ledger of bills and checks), each of which the authenticity is recognized by the preceding purport of the pleading, and the testimony of Non-party 1, the witness of the court below, the witness of the court below's fixed position, and the witness of the court below (excluding each part of the above witness's testimony which is not trusted later). At the time when the defendant company endorsed each of the above bills, the non-party company issued each of the above bills, and at the time of endorsement, the payment date of each of the above bills was stated as May 4, 1985, and it is difficult for the above non-party company to issue the bill, but it agreed between the plaintiff and the plaintiff to extend the payment date of each of the above bills, and corrected it as May 14, 1985, the corrected date for the payment of each of the above bills, and there is no other evidence to prove that each of the above testimony is inconsistent with justice.

According to the above facts, since the defendant company made an endorsement on each of the above bills around February 5, 1985, which was prior to the date of the above payment, it shall bear only the obligation arising from the original text prior to the due date. The plaintiff shall present each of the above bills for payment on May 4, 1985, or after the date of the transaction, which was after the date of the original payment, to make it impossible to claim the right of recourse against the defendant company because it failed to make a lawful payment at the due date. Thus, the defendant's defense on this ground is justified.

In this regard, the plaintiff asserts that the defendant company again agreed to correct the due date of each of the above bills, and thus, the defendant company made a lawful presentation of payment at that date. However, there is no evidence to prove that the defendant company consented to the above correction. Thus, the plaintiff's above assertion is groundless.

2. Judgment on the conjunctive claim

A. The above evidence Nos. 1-1, 2, and 1, 2-1 of the above evidence Nos. 1-2, and 1, 2-1 of the above evidence No. 3, and each of the above evidence Nos. 5-1 and 2 of the above evidence No. 1, the above witness justice point, non-party 1, 1, 3, and the next testimony (excluding the part which is not trusted among the above witness justice point, 3-2, and the next testimony) of the court below after the fact finding that the above evidence No. 1-1 and 1-2 of the above evidence No. 1 and the above evidence No. 2 were issued to the non-party 5 of the above non-party company, and the defendant company did not issue the above evidence No. 1 of the non-party company's new bill No. 1 to the non-party 2 for the purpose of the non-party 1's new bill No. 1, 1984, which was known to the non-party 1's new bill No.5.

According to the above facts, the defendant company made an endorsement as above on each of the above bills, and thus, it is deemed that the non-party company provided a joint and several surety to the creditor who borrowed money through the non-party company in the manner of discount of the bill, and the plaintiff should have lent money in trust with the defendant company, which is the endorser, to guarantee the above lending of money. Thus, the defendant company shall be liable to guarantee the non-party company's above lending of money (see Supreme Court Decision 86Meu783, Jul. 22, 1986).

B. However, the defendant, on May 4, 1985, issued 30,00,00 won per share and 20,000,000 won per share per payment in lieu of paying the above borrowed amount to the plaintiff, so the above debt is a defense that the above debt is extinguished by the payment in lieu of paying the above borrowed amount, so the above non-party company cannot be deemed to have issued 20,000,000 won per share and 20,000 won per share per payment in lieu of the above borrowed amount. Thus, the above non-party company cannot be deemed to have issued 30,00,000,000 won per share per payment in lieu of the above borrowed amount and the above 4,000 won per share per payment in lieu of the above borrowed amount and the above 14,000,0000 won per share per payment in lieu of the above non-party company's new 4,000,0000 won per share per payment in lieu of the above borrowed amount per one bill.

3. Accordingly, the plaintiff's main claim of this case is without merit. The defendant, upon the plaintiff's conjunctive claim, has the duty to pay to the plaintiff 50,000,000 won of loan borrowed from the non-party company and the next day after the plaintiff's delivery of a copy of this case to the defendant. The plaintiff's main claim of this case is 5% annual interest rate from June 8, 1985 to January 19, 1987 (the plaintiff is entitled to pay damages for delay at the rate of 25% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc., even before the judgment of the court is rendered at the court below. But it is reasonable for the defendant to dispute the existence and scope of the joint and several liability of this case, and it is reasonable for the defendant to pay damages for delay at each rate of 25,000,000 won per annum as stated above. The plaintiff's conjunctive claim of this case is justified, and the remaining claims are dismissed as to the remaining part of this case's appeal.

Judges Choi Han-sung (Presiding Judge)