[1] Whether the existing obligation is extinguished in a case where the holder of a check issued to discharge an existing obligation disposes of it as a settlement of the check by means of the method of avoiding the check (negative)

[2] Whether a right of recourse has been created against the previous check in a case where the check of the number of shares has been settled in a way that prevents the previous check (negative)

[1] If a creditor, who is a holder of a check issued for the performance of an existing obligation, treats the check as settled by means of a way to stop payment of the check, the amount equivalent to the check amount is deemed to have been deposited in the bank. Moreover, since the issuer, etc. is liable for another check by means of a new check instead of the previous check amount, the creditor cannot claim the previous check amount which has been disposed of as the settlement and terminated by the previous check amount, and only the claim for the new check amount can be made by the new check amount. However, the existing check amount is deferred by the new time limit for the payment of the check (date of issuance of the previous check) according to the mutual agreement between both parties, and the existing obligation is not extinguished. Thus, the previous check amount is extinguished only if the new check is payable, and the previous check amount has been done without the debtor’s consent, barring any special circumstances.

[2] In the event that Gap issued Byung's prior to the date of issuance of Byung for the repayment of Eul's loan obligation, Eul submitted the check to exchange, but Eul deposited the check to Byung's account without the bank account due to the shortage of deposit, Byung's request for the payment of Byung's loan to pay Byung's check, and in the case where Eul received a new prior to the date number table from Byung and the check was refused to pay the check, if the check was dealt with by the method of preventing the payment of the check, the new check number table shall be paid, but the new check number table shall be paid. Thus, there is no right to recourse against the previous check dealt with as already settled, and there is no problem of the recourse against the new check, and if the new check is refused to pay, Eul shall repay the existing loan and recover the check from Eul and make a recourse against Byung Byung's issuer Byung.

[1] Article 460 of the Civil Code / [2] Article 460 of the Civil Code, Articles 39 and 43 of the Check Act

[1] Supreme Court Decision 91Da14192 delivered on February 25, 1992 (Gong1992, 1118), Supreme Court Decision 94Da32016 delivered on April 7, 1995 (Gong195Sang, 1822)

Co., Ltd. (Attorney Kim Jong-soo, Counsel for the defendant-appellant)

Co., Ltd.

Defendant 2 and two others (Defendant-Appellee, Counsel for the defendant-appellant)

Busan District Court Decision 97Na2396, 2402 delivered on October 30, 1997

All appeals are dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

We examine the grounds of appeal.

1. On the first ground for appeal

If a creditor, who is a holder of a check issued for the performance of an existing obligation, treats the check as settled by means of a way to prevent the check from being repaid, the amount equivalent to the check amount is deemed to have been deposited in the bank, and the issuer, etc. is liable for another check by a new check instead of the previous check amount. Thus, the creditor cannot claim the previous check amount, which has been disposed of as the previous check amount, and the previous check amount cannot be claimed only by the new check amount. However, the previous obligation is deferred by the new time limit for the payment of the check (date of issuance on the previous check) according to the mutual agreement between both parties, and is not extinguished, the existing obligation is extinguished only if the new check was paid, and barring any special circumstance, it does not change by having been done without the debtor’s consent (see, e.g., Supreme Court Decisions 94Da32016, Apr. 7, 195; 91Da1214, Feb. 25, 1992).

In light of the records, the court below found the fact that the defendant Co., Ltd. Co., Ltd. (Counterclaim Plaintiff; hereinafter the defendant Co., Ltd.) deposited KRW 100 million in the non-party's account without the defendant Co., Ltd.'s company's company's name and paid the loan to the plaintiff (Counterclaim defendant; hereinafter the plaintiff) for the payment of the non-party's debt, and the plaintiff transferred the check to exchange. However, under the circumstance that the check is refused to pay due to the shortage of deposit, the plaintiff deposited KRW 100 million in the non-party's account without the defendant Co., Ltd.'s company's name and paid the check at the non-party's request, and the check was issued two copies of the number of shares per the first day's 50 million won, but all of which were refused to pay, and then the check was treated as a formal settlement of the check, but this is merely the fact that the plaintiff's debt owed to the plaintiff, which is an existing cause debt, still does not reach the ultimate satisfaction.

2. On the second ground for appeal

In a case where the check of the current number of shares has been settled by the method of preventing the settlement, the new check of the current number of shares must be paid, but the obligation to be caused ceases to exist. Therefore, there is no room for the right of recourse for the previous check which has been treated as the settlement, and the issue of the right of recourse for a new check remains. In a case where a new check has been refused, the defendant company cannot say that the defendant company can demand the issuer to recover the existing loan obligations and recover the check from the plaintiff.

The ground of appeal that the court below erred in the misapprehension of the reasoning in the judgment below on the premise that the exercise of the right of recourse by a new check is impossible is also acceptable, since the court below erred in the misapprehension of the reasoning of the judgment on the premise that the exercise of the right of recourse by a new check is not possible.

3. Therefore, all appeals are dismissed, and the 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 Cho Chang-hun (Presiding Justice)