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대법원 2006. 12. 7. 선고 2004다35397 판결
[정리채권확정][공2007.1.15.(266),113]
Main Issues

[1] In a case where a merchant bank sells corporate bills issued by the merchant bank in blank or by endorsement in blank, whether the customer acquires the rights on corporate bills to the customer (affirmative)

[2] Whether the customer can be deemed to have granted the merchant bank an authority to collect corporate bills where the merchant bank sold corporate bills to the customer by means of a passbook (affirmative with qualification)

Summary of Judgment

[1] Where the merchant bank, which purchased commercial papers issued in blank notes or those acquired by endorsement of blank notes, sells them to the customer and delivers to the customer, the merchant bank, which purchased the commercial papers in blank, with the contents of the commercial papers and the intent of keeping them in custody, may transfer them only by delivery of the blank notes or by endorsement of blank notes without endorsement, and it is recognized that the method of delivery of securities is conceptualized, such as simple delivery, possession alteration, transfer of the right to claim the return of the object, etc., which is recognized as the case of movable property, the customer shall receive the above commercial papers by way of possession alteration, and acquire the rights on the commercial notes.

[2] In the event that a merchant bank sells commercial papers to a customer in the form of a passbook, it is reasonable to interpret that there exists an implied agreement between the merchant bank and the customer to grant rights to the bills by presenting bills in the name of the merchant bank at the maturity when the merchant bank keeps them in custody and at maturity, in light of the securities presented as well as redemption securities, and the characteristics of bill transactions emphasizing externalism.

[Reference Provisions]

[1] Article 14(2)3 of the Bills of Exchange and Promissory Notes Act; Article 189 of the Civil Act; Article 7(1)1 of the Merchant Banks Act / [2] Articles 14(2)3, 18, 38, and 39 of the Bills of Exchange and Promissory Notes Act; Article 105 of the Civil Act; Article 7(1)1 of the Merchant Banks Act

Plaintiff-Appellant

Plaintiff 1 and one other (Law Firm Namsan, Attorneys Doh-woo, Counsel for the plaintiff-appellant)

Plaintiff Intervenor

Plaintiff Intervenor

Defendant-Appellee

The administrator of Nasan Co., Ltd., the Nonparty’s administrator of Nasan Co., Ltd., the Nonparty’s taking-off of the lawsuit (Law Firm Han Han Law, Attorney Kim Jin

Judgment of remand

Supreme Court Decision 99Da73159 delivered on July 9, 2002

Judgment of the lower court

Seoul High Court Decision 2002Na43440 delivered on May 21, 2004

Text

The judgment below is reversed and the case is remanded to Seoul High Court.

Reasons

In cases where the merchant bank which purchased commercial papers (CP) issued in blank notes or those acquired by endorsement in blank, sells them to the customer and delivers to the customer the passbook in which the contents of the commercial papers and the intent of the custody are recorded in lieu of the real, even if the transaction is not conducted using the securities deposit system recognized by the Securities and Exchange Act, the bank can transfer the blank bills or the bills acquired by endorsement in blank only without endorsement, and it is recognized that the delivery of the securities is conceptualized by simple delivery, possession, alteration, transfer of the right to claim the return of the object, etc.

Examining the reasoning of the judgment below in light of the records, Article 16 of the Merchant Banks Act at the time of the sale of the bill of this case, which was enacted pursuant to the general supervision clause of Article 21 of the Merchant Banks Act, provides that a merchant bank shall use the bill in custody. In addition, Article 27 (2) of the same Act provides that where a merchant bank engages in the sale and brokerage of the bill of this case under Article 7, if the merchant bank is engaged in the sale and brokerage of the bill of this Act, it shall be governed by this Act. However, Article 16 of the above guidelines is merely a provision of the merchant bank's business method, but it cannot be deemed that Article 16 of the above guidelines provides special transfer requirements applicable to commercial papers sold by the merchant bank under the Civil Act or the Bills of Exchange and Promissory Notes Act. Thus, the court below's decision that the rights in the bill of this case were transferred to each customer at the time of the sale of the bill of this case is erroneous in interpreting the above provisions. On the other hand, it can be seen that all of the bill of this case is acquired at least part of the bill.

However, in the event that commercial papers are sold by the passbook method as above, the rights on the bill are transferred separate from the transfer of the rights on the bill, and in light of the characteristic of the bill transaction under which the principle of external appearance is emphasized, if there was no explicit agreement between the merchant bank and the customer in connection with the safekeeping business and the collection business at maturity, it is reasonable to interpret that there exists an implied agreement between the merchant bank and the customer that grants rights on the bill by presenting the bill in the name of the merchant bank at maturity when the customer again keeps the bill to the merchant bank. Accordingly, the lower court should have deliberated on whether there was any contractual relationship between the merchant bank and the customer in relation to the safekeeping and collection business of the bill in question, separately from whether the rights on the bill have been transferred to the customer.

Nevertheless, without examining the above circumstances, the court below determined that the Plaintiff could not exercise its rights on the Promissory Notes without examining the following circumstances, but the court below erred by misapprehending the legal principles on the legal relations between the merchant bank and the customer who sold the Promissory Notes by means of a deposit passbook, and by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)

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심급 사건
- 서울고등법원 2004.5.21.선고 2002나43440

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- 오영준 백지어음 소지인의 어음금청구에 의한 소멸시효 중단 대법원판례해설 83호 / 법원도서관 2010

- 김홍기 지명채권 양도방법에 의한 어음상 권리의 양도 상법판례백선 / 법문사 2012

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- 강영수 만기가 기재된 백지어음과 소멸시효 중단 정의로운 사법 : 이용훈대법원장재임기념 / 사법발전재단 2011

- 임채웅 사해행위로서의 소송행위의 취소 및 부인에 관한 연구 민사재판의 제문제 16권 / 한국사법행정학회 2007

참조조문

- [1] 어음법 제14조 제2항 제3호

- 민법 제189조

- 종합금융회사에 관한 법률 제7조 제1항 제1호

- [2] 어음법 제14조 제2항 제3호

- 어음법 제18조

- 어음법 제38조

- 어음법 제39조

- 민법 제105조

- 종합금융회사에 관한 법률 제7조 제1항 제1호

본문참조조문

- 종합금융회사에 관한 법률 제21조

- 종합금융회사에 관한 법률 제27조 제2항

- 종합금융회사에 관한 법률 제7조

원심판결

- 대법원 2002. 7. 9. 선고 99다73159 판결

- 서울고법 2004. 5. 21. 선고 2002나43440 판결