[1] In a case where Gap endorsed a cashier's check issued by a branch of the National Agricultural Cooperative Federation and delivered it to Eul in lieu of satisfaction of the existing obligation, but Eul did not comply with the return of documents related to claims, Eul's employees Byung applied for a public summons and received a check with a nullification judgment invalidating the check, the case holding that the National Agricultural Cooperative Federation, the issuer of the check, and Gap, the endorser of the National Agricultural Cooperative Federation, are liable to pay the check to Eul jointly

[2] In a case where a person who has obtained a judgment of nullification by deceiving the court of a public summons as if he/she was aware of his/her whereabouts by making a request for a public summons on the ground of false assertion, whether the person who has obtained a judgment of nullification is liable for damages caused by a tort against the holder of the check (affirmative); and in a case where the judgment of nullification is revoked, whether the damage has occurred

[1] In a case where Gap endorsed a cashier's check issued by the branch of the National Agricultural Cooperative Federation (hereinafter "the "Corporation") and delivered it to Eul in lieu of satisfaction of the existing obligation, but Eul had employees Byung receive the report of an accident on the check, and Byung applied for a public summons at Gap's order and received the check money from the union upon receiving a nullification judgment invalidating the check, the case holding that the above check was issued according to Gap's will, and it was not subject to the procedure of public summons because Byung did not constitute stolen, lost, or destroyed securities, and it was ruled by the court of public summons as if Byung was lost, it constitutes "when the judgment was rendered by fraudulent or illegal means" as stipulated in Article 490 (2) 7 of the Civil Procedure Act, and Eul's request for payment of the check money to Eul constitutes a conditional performance claim on condition that the cancellation judgment becomes final and conclusive, and it is not against Gap's duty to accept a conditional performance claim on the condition that Eul's claim for payment of the check is a conditional performance, and it is not against the issuer's right.

[2] If a request for a public summons was made in the court on the ground of false assertion, and furthermore, as if the holder of a check knew of his/her whereabouts, he/she was present on the date of the public summons and state his/her intention to seek a nullification judgment, thereby deceiving the public summons court, which shall in turn lead to a nullification judgment that takes effect simultaneously with a declaration by the public summons court, the check shall become null and void, and the holder of the check shall not exercise his/her right on the check, and shall not be entitled to the claim for reimbursement of benefit premised on the premise that he/she is the lawful holder of the check, and shall be deemed to have suffered losses that may not arise. Therefore, in principle, the person holding the nullification judgment shall be held liable for compensation for damages caused by a tort against the holder of the check. However, even if the nullification judgment was revoked by a fraudulent or other wrongful means, the holder of the check may exercise his/her right on the check,

[1] Articles 251, 490(2)7, and 497 of the Civil Procedure Act / [2] Article 750 of the Civil Act, Article 490(2)7 of the Civil Procedure Act

[2] Supreme Court Decision 88Meu7962 delivered on June 13, 1989 (Gong1989, 1057)

Plaintiff (Attorney Kim Young-chul et al., Counsel for the plaintiff-appellant)

National Agricultural Cooperative Federation and two others (Law Firm No. LLC et al., Counsel for the plaintiff-appellant)

Suwon District Court Decision 2009Da44654 decided July 16, 2010

March 8, 2012

1. The part of the judgment of the first instance against Defendant National Agricultural Cooperative Federation and Defendant 2 shall be modified as follows:

A. Defendant National Agricultural Cooperative Federation and Defendant 2 shall jointly pay to the Plaintiff 80 million won and 6% interest per annum from June 1, 2009 to the day of full payment, subject to the final judgment revoking judgment of nullification 2009KaGong309 with respect to the checks listed in the list (attached Form).

B. The plaintiff's National Agricultural Cooperative Federation and defendant 2's remaining claims are dismissed.

2. Of the judgment of the court of first instance, the part on the claim for damages against Defendant 3 is revoked, and the plaintiff's claim corresponding to the revocation is dismissed.

3. The defendants' remaining appeals are dismissed.

4. Of the total litigation cost between the Plaintiff, Defendant National Agricultural Cooperative Federation, and Defendant 2, 1/10 shall be borne by the Plaintiff, the remainder by the Defendants, and the total litigation cost between the Plaintiff and Defendant 3 shall be borne by the Plaintiff and Defendant 3 respectively.

1. Purport of claim

A. The Suwon District Court's Sung-nam Branch revoked the judgment of nullification rendered on September 23, 2009 with respect to the checks listed in the list (attached Form) on September 23, 2009 in the case of application for public summons 2009 Chicago309, and dismissed the application for the judgment of nullification with respect to the said checks.

B. The Defendants shall pay to each of the Plaintiff the amount of KRW 80 million and the amount of 6% per annum from June 1, 2009 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the day of full payment (However, to Defendant National Agricultural Cooperative Federation and Defendant 2, the above amount shall be claimed as principal and conjunctive payment).

2. Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the revocation part is dismissed in entirety.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the following facts: Gap evidence 1 to 4, Gap evidence 6, 9, Eul evidence 16-15, Eul evidence 1 to 5 (including each number), Eul evidence 14-3, part of Eul evidence 14-3, non-party 1's testimony of non-party 1 as witness of the court of first instance, and the fact-finding with respect to Suwon Branch of the court of first instance as a whole the purport of the pleadings.

A. On May 29, 2009, Defendant 3, who is an employee of Defendant 2, requested the issuance of cashier’s checks at the branch of the Defendant National Agricultural Cooperative Federation (hereinafter “Defendant Union”) to the branch of the branch of the branch of the branch of the branch of the Defendant National Agricultural Cooperative Federation (hereinafter “Defendant Union”) and issued and delivered the checks listed in the list (attached Form) at par value 80 million from the said branch (hereinafter “instant checks”) to Defendant 2.

B. On the same day, Defendant 2 and Nonparty 2 requested the Plaintiff to return the instant check, which he endorsed by himself, in lieu of the repayment of the existing debt to the Plaintiff at the Liber hotel coffee shop located in Gangnam-gu Seoul, Gangnam-gu, Seoul, and requested the Plaintiff to return the documents related to interest reduction and exemption, but on the same day, Defendant 3 had Defendant 3 receive an accident report on the instant check at the headquarters of the Defendant Union, without complying with the Plaintiff’s request.

C. On June 1, 2009, the Plaintiff delegated the collection of the instant check to the Bank and presented payment to the Defendant Association branch through a clearing house, but was refused on the ground of the receipt of the accident report.

D. Meanwhile, on June 5, 2009, Defendant 3, upon Defendant 2’s instruction, issued a certificate of non-payment at the branch of the party branch of the Defendant Union (in the case of the instant check) on June 5, 2009, Defendant 3 filed an application for a public summons on the instant check on the grounds that “the applicant, as the last holder of the instant check, lost the instant check at the Seoul Cheongdo-dong, Gangnam-gu, Seoul Cheongdo-dong, and has not been recovered until now, at around 15:30 on May 29, 2009, filed an application for a public summons on the instant check with Sung-gu Branch Branch Branch 2009KaGong309, and made a statement on September 23, 2009 to the effect that the cause of the application for public summons and the judgment of nullification were sought on the date of the public summons. The said court rendered a judgment of nullification that invalidated the instant check on the same day

E. On September 23, 2009, Defendant 3 demanded the payment of the check money based on the judgment of nullification of the instant case, Defendant 3 paid KRW 800 million to Defendant 3 on the same day.

F. On October 6, 2009, the Plaintiff confirmed the case number of the nullification judgment of this case and perused and copied the application form for the public summons and the text of the nullification judgment, and filed the instant lawsuit against the nullification judgment of this case on November 5, 2009.

G. The operating manual of the Defendant Union provides for the following provisions concerning the report on accidents by cashier’s checks (in this case, only parts related thereto shall be extracted and entered).

(4) If the judgment of nullification pursuant to a public summons is likely to become final and conclusive first, the holder shall be urged to report his/her right to the public summons (payment of an accident check). (1) At the time when the person who reported the accident has agreed on the request for payment of the accident check, payment may be made only under the following circumstances: (a) at the time when the person who reported the accident has submitted the judgment of nullification after receiving the judgment of nullification, and the request for payment is made. (b) At the time when the person who reported the accident has agreed on the request for payment of the check, the original copy of the judgment of nullification and the written request for payment shall be made. The seal imprint affixed on the written request for the deposit shall be consistent with the seal imprint affixed on the written request for the judgment of nullification. However, if the person who reported the accident subject to the judgment of nullification has affixed his/her own seal, payment may be made on the written request for deposit signed by the person himself/herself (the copy of the certificate of de facto confirmation). (b) Even after the judgment of nullification has been deferred, and the submission of the report of nullification is submitted.

2. Judgment on a lawsuit against nullification judgment

A. The plaintiff's assertion

Although Defendant 3 did not actually lose the check of this case, the Plaintiff filed a request for a public summons and received the judgment of this case from the court of public summons that believed it as true. Thus, the judgment of this case constitutes “where a public summons procedure is not permitted under the law” under Article 490(2)1 of the Civil Procedure Act or “where a judgment of nullification has been obtained by a false or unlawful means” under Article 490(2)7 of the Civil Procedure Act, and sought the revocation of the judgment of this case and the rejection of Defendant 3’s request for the judgment of nullification.

B. Determination on the main defense of this case

The Defendants have asserted that the lawsuit of objection against the nullification judgment of this case is unlawful on the grounds that the period for filing the lawsuit expires.

A lawsuit of objection against a judgment of nullification shall be filed within one month from the date on which the plaintiff becomes aware that there has been a judgment of nullification pursuant to Article 491(3) of the Civil Procedure Act in the case of filing a lawsuit on the grounds of Article 490(2)1 of the same Act (the time when the procedure of a public summons is not permitted under the law). According to the evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence No. 6, the plaintiff can be acknowledged as having become aware of the judgment of nullification in the course of protesting against the payment of the check money to the head of the branch office on October 1, 2009. The lawsuit of objection against the judgment of nullification in this case was filed on November 5, 2009, since the plaintiff sought the cancellation of the judgment of nullification in this case on the grounds of Article 490(2)1 of the Civil Procedure Act, it is unlawful since the period of filing the lawsuit has expired.

However, the plaintiff may also file a lawsuit against the nullification judgment on the ground of Article 490(2)7 of the Civil Procedure Act (the time when the judgment of nullification was rendered by false or unjust means). In the event that a lawsuit against the nullification judgment was filed on the ground of Article 490(2)7 of the Civil Procedure Act, the plaintiff may file a lawsuit within one month from the date when he became aware of such ground pursuant to the proviso of Article 491(3) of the same Act. In light of the purport of the above proviso, it is evident that the plaintiff knew of the existence of the nullification judgment of this case on October 1, 2009, the plaintiff cannot be said to have known that there was such ground in the nullification judgment of this case. As acknowledged earlier, it is reasonable to view that the plaintiff knew that "the defendant 3 obtained the nullification judgment of this case by false or unjust means only when he directly inspects the text of the nullification judgment of this case on October 6, 2009."

The Defendants asserted that the employees of the branch office of the defendant union was aware of the causes under Article 490 (2) 7 of the Civil Procedure Act in the nullification judgment of this case on October 1, 2009, but it is not sufficient to recognize that the Defendant union employees informed the Plaintiff of the name and contact address of the check reporter by telephone around June 2, 2009, and that the above causes for the accident report were the same person on October 1 of the same year. Thus, the Plaintiff knew of the causes under Article 490 (2) 7 of the Civil Procedure Act in the nullification judgment of this case on October 1, 2009. However, it is insufficient to recognize that the Defendant union employees were informed of the above information to the Plaintiff on the sole basis of the evidence No. 6, Eul’s evidence No. 5-1, and testimony of non-party 1 of the first instance trial witness, and there is no other evidence to support this otherwise, the Defendants’ above assertion is not acceptable (the Defendants’ assertion that the Defendants’ name of this case was the Defendant No. 3, and the name of this case.

Therefore, the lawsuit of objection against the nullification judgment of this case is legitimate within the scope of "when the judgment of nullification has been obtained by fraudulent or other unlawful means" as the cause of the claim. Thus, the defendants' main defense to safety is without merit.

C. Judgment on the merits

Even if the former holder of securities or certificates loses the possession of securities, etc. without his own intention, if it is found that a specific person holds the securities, etc. thereafter, the former holder shall request the former holder to return the securities, etc., and no public summons therefor shall be allowed. If the former holder, as he knows, was aware of the whereabouts of the holder of the securities, etc., was present on the date of the public summons and state his intention to seek cause and nullification judgment, thereby deceiving the public summons court, and if the former holder was subjected to the judgment of nullification from the public summons court, it constitutes “when the judgment of nullification has been obtained by false or unjust means” under Article 490(2)7 of the Civil Procedure Act (see Supreme Court Decision 97Da16985 delivered on July 25, 1997).

In the instant case, as acknowledged earlier, Defendant 2 delivered the instant check to the Plaintiff on May 29, 2009 instead of performing the existing obligation to the Plaintiff (in short of the evidence submitted by Defendant 2 and 3 and the testimony by Nonparty 2 of the first instance trial witness alone, it is insufficient to deem that the Plaintiff stolen or acquired the instant check by following the recognition). Defendant 3 applied for a public summons on the ground that he lost the instant check, and appeared on the date of the public summons and stated the purport of seeking the said cause of request and nullification judgment. In light of these facts, inasmuch as the check was issued based on Defendant 2’s intention and is not subject to the public summons procedure, it does not constitute the securities stolen, lost, or destroyed, and thus, Defendant 3 was deprived of the court of the public summons as if he had lost the instant check, and this constitutes “when the judgment of nullification was obtained by false or unjust means” as provided in Article 490(2)7 of the Civil Procedure Act.

Therefore, the plaintiff, who is the holder of the check of this case, has a ground to appeal against the judgment of nullification.

3. Determination on the claim for the check money (the defendant union and the defendant's primary claim against the defendant 2)

A. Determination on the cause of the claim

As seen earlier, the judgment of nullification should be revoked on the ground that the Plaintiff’s appeal for objection to the judgment of nullification is with merit, and barring any special circumstance, the Defendant Union is the drawer of the instant check, and Defendant 2 is liable to pay the amount of the check jointly to the Plaintiff, who is a lawful holder of the instant check.

B. Determination of the defendants' assertion

(1) Defendant Union’s assertion of performance to quasi-Possessors of claim

The Defendant Union asserts that the payment of the check money to Defendant 3 is valid as repayment to quasi-Possessors of the claim, and thus, the Defendant Union’s obligation to pay the check money was extinguished.

Even if a payment bank to a person who received a nullification judgment loses its retroactive effect after the payment of the check, the payment bank shall be deemed to be a quasi-Possessor of the claim at the time when the payment bank made the payment. Thus, the payment bank shall be exempted unless it is bona fide and without negligence (see Supreme Court Decision 97Da4966 delivered on March 12, 199).

However, in this case, if the following circumstances are acknowledged by the above evidence, namely, the check of this case is valuable securities with a face value of 80 million won, and its function and strong circulation is guaranteed as a means of payment. Thus, in exceptional cases where the payment of check money to the person holding the judgment of nullification is not the last holder of the check, the Plaintiff presented a payment within the period of payment. In this case, the Plaintiff directly visited the employee at the branch office of the Defendant Union and asked the Plaintiff to inform the employee of the instant check so that the Plaintiff can respond to the Plaintiff. The operating rules of the Defendant Union also provided that the Plaintiff may first inform the Plaintiff of the right to report the right to the public summons if there is a possibility that the nullification judgment pursuant to the public summons becomes final and conclusive, but the above branch office employees at the same time did not inform the Plaintiff of the fact that the Plaintiff could have been declared at least 9 months after the date of the final and conclusive judgment of nullification, in light of the above fact that the Plaintiff did not submit the certificate of nullification judgment to the Plaintiff after the issuance of the public summons.

The above assertion by the defendant union is without merit.

(2) Defendant 2’s assertion that the check is null and void because the lawsuit against the nullification judgment becomes final and conclusive.

Defendant 2 asserts that the Plaintiff’s claim of this case should be dismissed, since the check in this case is null and void, so long as the lawsuit of objection against nullification judgment is a form of lawsuit and the judgment of winning is not finalized.

Even if a lawsuit of demurrer against a nullification judgment is possible, the judgment of nullification is formally binding until it is revoked, and accordingly, the holder of the securities cannot exercise his/her rights until the judgment of nullification becomes final and conclusive. However, in this case, although the Plaintiff did not specify in the purport of the claim, the Plaintiff sought payment of the check amount against the Defendant Union and the Defendant 2 on the premise that the lawsuit of objection against the nullification judgment is accepted in the cause of the claim, which constitutes a lawsuit for future performance. In order to be lawful in the future, the legal and factual relationship, which serves as the basis of the claim, exists at the time of closing of argument, and such status is expected to continue to exist (see Supreme Court Decision 95Nu4902, 4919, Nov. 11, 1997). Accordingly, the Plaintiff’s claim against the Plaintiff’s conditional performance of the obligation to claim payment of the check amount, as well as the case where the Plaintiff’s claim against the Plaintiff’s conditional performance of the obligation to claim payment of the check amount can not be seen in advance (see Supreme Court Decision 2004Da375, etc.).

Therefore, Defendant 2’s above assertion is without merit.

(3) Defendant 2’s act of delivering the check of this case and assertion of defects in the underlying act

Defendant 2 asserted that the Plaintiff was not a lawful holder of the check of this case since the Plaintiff stolen or stolen the check of this case from Defendant 2 or Nonparty 2, but it is insufficient to recognize that the Plaintiff’s testimony of Nonparty 2, and Nonparty 2, and Nonparty 3, on May 29, 2009, stated that the Plaintiff was not a lawful holder of the check of this case. However, considering the contents of the statement, there is a difference between the Plaintiff’s statement and the same person’s specific situation at the time of statement, and thus, the Plaintiff could not accurately receive the claim or the document of this case from Nonparty 2, and the Plaintiff could not receive the claim or the document of this case from the point of time when the Plaintiff could not receive the claim or the document of this case from Nonparty 2, the Plaintiff could not receive the claim or the document of this case from the point of time when it was stated.

Defendant 2 also asserted that the basic agreement that caused the issuance of the check of this case was invalid or revoked by the Plaintiff’s coercion, and thus, Defendant 2 may oppose the Plaintiff’s claim for the payment of the check of this case. However, it is insufficient to recognize that the Plaintiff’s obligation which caused the delivery of the check of this case was due to the Plaintiff’s attack and intimidation, and there is no other evidence to prove otherwise.

Defendant 2’s above assertion is without merit.

4. Determination as to the claim for damages arising from the tort against Defendant 3

A. The assertion

The Plaintiff asserts that Defendant 3 was liable to pay KRW 800,000 to the Plaintiff with the judgment of nullification in a false manner and paid KRW 800,000,00 to the Plaintiff.

B. Determination

If a request for a public summons is made in the court on the ground of a false assertion, and furthermore, as he knows his whereabouts, appears on the date of the public summons to state the cause of the request and the purport of seeking a nullification judgment, and deceptions the public summons court, and its appurtenances are subject to a nullification judgment that takes effect simultaneously with the declaration by the court of public summons, the check becomes null and void, and the holder of the check is not entitled to exercise his rights on the check, and the holder of the check suffers losses from the failure to claim a reimbursement of the check under the premise that he is a lawful holder of the check. Thus, in principle, the person holding the public summons is liable for compensating the holder of the check for damages caused by a tort (see Supreme Court Decision 88Da7962, Jun. 13, 1989). However, even if the nullification judgment was obtained by a false or unjust means, if it was revoked by a lawsuit for objection, the holder of the check shall exercise his rights on the check, and it cannot be said that any damage has occurred to the holder of the check, unless there are special circumstances.

In the instant case, while the revocation judgment on the instant nullification judgment was not confirmed, the instant nullification judgment constitutes Article 490(2)7 of the Civil Procedure Act, and as seen earlier, revoked the judgment and accepted the Plaintiff’s claim for the check money against the Defendant Union and the Defendant 2 on the condition that the revocation judgment becomes final and conclusive. Therefore, in light of this, it cannot be deemed that the Plaintiff suffered any loss due to the instant nullification judgment, and there is no other evidence to acknowledge it otherwise.

The plaintiff's claim for damages against the defendant 3 is without merit.

5. Conclusion

Therefore, the judgment of this case is revoked and the application for the judgment of this case is dismissed, and the defendant union and the defendant 2 are jointly bound to pay the plaintiff the legal interest or delay damages amounting to 80 million won and 6% per annum as prescribed in the Check Act from June 1, 2009 to the date of the presentation of the payment of the check of this case (the obligation to pay the check of this case only when the judgment of revocation becomes final and conclusive, the obligation to pay the check of this case shall not apply the interest rate prescribed in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc.). Thus, the plaintiff's primary claim against the defendant union and the defendant 2 shall be accepted within the above scope of recognition, and the provisional execution is not declared, and the remainder of the claim shall be dismissed as it is without merit, and the claim for damages against the defendant 3 shall be dismissed as the remaining part of the judgment of the court of first instance which is unfair, and the remaining part of the judgment of the court of first instance shall be dismissed as it is dismissed.

[Attachment] List of Checks: Omitted

Judges highest (Presiding Judge) Lee Jae-ho Kim