The relationship between the amount of damage in the event of failure to pay a forged check and the existence of the underlying claim

In a case where a bearer of a counterfeited check has not received the check money, the holder of the check shall be deemed to have suffered damage equivalent to the check money, barring special circumstances, so even if the holder acquired a check to receive the previous claim against a third party, it shall not affect any damage suffered by the holder due to the failure to pay the check money.

Article 763 of the Civil Act

Supreme Court Decision 70Da505 Decided May 12, 1970, 72Da1388 Decided October 10, 1972

Madice et al.

Seocho Electric Co., Ltd., Ltd. (Law Office in Dong-dong Law Office, Attorney Noh Jong-sung et al., Counsel for the

Seoul High Court Decision 86Na735 delivered on October 7, 1986

The part of the judgment below on the conjunctive claim is reversed, and that part of the case is remanded to the court.

The appeal against the plaintiffs' primary claim is dismissed.

The costs of appeal dismissed shall be assessed against the plaintiffs.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below held that the non-party who forged each of the instant checks in the name of the defendant and delivered them to the plaintiffs is for the repayment of the non-party's existing obligations to the plaintiffs, so it cannot be deemed that there is a real loss due to the act of forging each of the said checks, and therefore, the plaintiffs' preliminary claim based on the premise that the damage was caused to the plaintiffs due to the forgery

However, in a case where the holder of a check has not received the check money, the holder of the check shall be deemed to have suffered damage equivalent to the check money, unless there are special circumstances, and in a causal relationship where the holder of the check has acquired the check, it shall not affect any damage suffered by the holder of the check due to the failure to pay the check money unless it is paid (see, e.g., Supreme Court Decision 72Da1388, Oct. 10, 1972; Supreme Court Decision 70Da505, May 12, 1970).

Nevertheless, the court below held that since each of the checks of this case was issued for the repayment of the non-party's existing obligation to the non-party, it cannot be deemed that the plaintiffs suffered losses, the court below erred in the misapprehension of legal principles as to damages, which affected the conclusion of the judgment, and the ground of appeal No. 1 which points out this error is justified.

2. The plaintiffs filed an appeal against the main claim among the judgment below, but there was no ground of appeal as to this.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiffs, the part concerning the plaintiff's conjunctive claim is reversed, and that part of the judgment below is remanded to the court below for further proceedings consistent with this Opinion. The appeal against the main claim is dismissed, and the costs of appeal against the main claim are assessed against the losing party. It is so decided as per Disposition by

Justices Park Jong-dong (Presiding Justice)