The case reversing the judgment of the court below on the ground that the method of transferring the right on a bill with a continuous defect in endorsement and its requisite for setting up against it was incomplete.

The case reversing the judgment of the court below which accepted the exercise of the right on the bill by deeming that the holder of a bill with a continuous defect in endorsement has actually acquired the right on the bill, or on the ground that it was erroneous in recognizing the transfer by simple delivery, or without examining whether the requirements for setting up against the obligor have been satisfied, by the method of transferring nominative claim.

Articles 12(3), 16, and 77(1)1 of the Bills of Exchange and Promissory Notes Act; Article 450(1) of the Civil Act

Supreme Court Decision 88Meu20774 Decided October 24, 1989 (Gong1989, 1571) Supreme Court Decision 95Da7024 Decided September 15, 1995 (Gong1995Ha, 3391) Supreme Court Decision 94Da58377 Decided September 29, 195 (Gong195Ha, 3605)

Plaintiff

Defendant

Seoul Private District Court Decision 93Na31947 delivered on December 23, 1993

The judgment of the court below is reversed, and the case is remanded to Seoul District Court Panel Division.

We examine the grounds of appeal.

On the first ground for appeal

In light of the records, the fact-finding by the court below that the non-party 1 received the bill of this case from the non-party 2 and paid the amount of the bill of this case as the discount price shall be justified and it shall not be found that there is an error of misconception of facts due to a violation of the rules of evidence. The arguments are without merit.

On the second ground for appeal

According to the reasoning of the judgment below, the court below issued one promissory note of this case to the non-party 3 with face value, maturity, and maturity of the payee in blank, and the non-party 3 granted the right to supplement and grant discount in blank to the non-party 2 who was in a business relationship with the non-party 3, and then delivered the bill of this case to the non-party 2 with the signature and seal affixed to the non-party 1. The non-party 1 stated the face value and maturity of the bill of this case in his name, supplemented the bill of this case and delivered it to the non-party 1 without the seal affixed to the non-party 1. After this, the non-party 1 confirmed that the plaintiff became the final holder of the bill of this case by transferring the bill of this case to the plaintiff. Since the above endorsement made by the non-party 2 without the seal affixed to the plaintiff, the non-party 2 was null and void, and therefore the non-party 1 received the bill of this case by receiving the bill of this case from the non-party 1.

As recognized by the court below, the holder can exercise his rights on the bill if he proves the fact of the actual transfer of rights to the bill in the event of a defect in the series of endorsement. However, the above determination by the court below is not clear whether the delivery of the bill of this case between Nonparty 2 and Nonparty 1 was made, or whether the transfer of rights on the bill was made on the bill by the method of transferring nominative claim between the above two persons. If the purport of the court below is that only the simple delivery of the bill of this case is a transfer of rights on the bill of this case, if the transfer of rights on the bill is possible by delivery of the bill of this case, it is unfair since the bill of this case can be transferred only to the bill of this case in the blank, in the form of either the bill of this case, in registered form, or the bill of this case, which was issued in the form of the bill of this case, and is limited to the bill of this case, in the form of the last endorsement, or in the form of the bill of this case.

In addition, it is understood that the purport of the court below is that the bill of this case was transferred by the method of transferring nominative claim, even if it is recognized that the right under the promissory note was transferred by the method of transferring nominative claim, the transfer cannot be asserted against the obligor unless it satisfies the requisite to set up against the obligor under Article 450 (1) of the Civil Code (see Supreme Court Decision 88Meu2074, Oct. 24, 1989). If it is not required, it would result in recognizing the transfer of right only by delivery of the bill, and eventually, it would be contrary to the express provisions of the Bills of Exchange and Promissory Notes Act concerning a simple transfer of the bill, and in this case, the original purport of the judgment that the endorsement by Nonparty 2 is null and void because it is entirely dismissed, and it would result in allowing the transfer by the method of a simple transfer of the bill, instead, to the person who fails to meet the formal requirements requiring that the endorsement system should be met at least by the method

Therefore, the court below should have deliberated whether Nonparty 1, who is the debtor of the bill of this case, satisfies the requirements for setting up against the defendant in acquiring the rights of the bill of this case, but without fulfilling them, recognized that there was the transfer of the real right to set up against the debtor against the non-party 1. Therefore, the court below cannot be exempted from the point of law by misunderstanding the legal principles on the non-performance of endorsement.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the continuous defect of endorsement, since the court below recognized the transfer of nominative claim by the method of transferring nominative claim without examining whether the bill of this case was delivered only or the obligor met the requisite for setting up against the obligor. The argument is with merit.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for further proceedings. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)