1. Whether the holder, who acquired at a discount a promissory note, the payment guarantee words of which for the issuer are forged, has made an assertion on the representation against the guarantor; and

2. The validity of a guarantee, if any, given for the drawer of a bill;

3. Where a bill is presented after the expiration of the period for presentment, whether the guarantor who guaranteed payment for the drawer continues to be liable;

1. Where a payment guarantee words for an issuer on a promissory note are removed due to forgery by means of a public offering between the manager of a financial institution and the issuer, any person who acquires the relevant bill through a securities company is merely a third acquisitor who is not a party to the act of guaranteeing the said bill, and shall not be the other party to the expression as the representative; and

2. Where a payment guarantee is given for the drawer of a bill and the scope of liability for guarantee is limited by setting the time limit for such guarantee, such time limit shall be null and void, and such payment guarantee shall remain effective as it has no time limit.

3. In the case of a payment guarantee for the drawer, even if the bill was presented after the expiration of the period for presentment, the obligation on the bill continues to exist before the expiration of the period for presentment, and therefore, the responsibility for payment guarantee for the drawer is not extinguished.

Article 8 of the Bills of Exchange and Promissory Notes Act, Article 31 of the Bills of Exchange and Promissory Notes Act, Article 32 of the Bills

Lighting;

Defendant Bank

Seoul Civil History District Court (84 Gohap1690)

1. From October 21, 1983 to November 26, 1984, the part of the judgment against the defendant ordering the plaintiff to pay in excess of the amount of 28,636,000 won per annum with respect to the conjunctive claim among the original judgment, and the amount of 25 percent per annum with respect to the conjunctive claim from November 27, 1984 to the date of full payment, shall be revoked, and the plaintiff's conjunctive claim corresponding to that part shall be dismissed.

2. The defendant's remaining appeal and the plaintiff's incidental appeal are dismissed, respectively.

3. Ten minutes of the costs of lawsuit shall be borne by the plaintiff and the remainder by the defendant, respectively, through the first and second trials.

From October 26, 1983 to the date on which a copy of the complaint of this case is served on the Plaintiff, the Defendant shall pay to the Plaintiff an amount of 30 million won with the annual interest rate of 6 percent (5 percent per annum for preliminary claims) and the annual interest rate of 25 percent from the next day to the date of full payment.

The judgment that the lawsuit costs shall be borne by the defendant and provisional execution declaration

The defendant shall file an appeal and revoke the original judgment.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances, and the plaintiff is an incidental appeal and the part against the plaintiff in the original judgment shall be revoked.

The defendant shall pay to the plaintiff 30,000,000 won with an annual amount of 6% from October 21, 1983 to the delivery date of this case, and with an annual amount of 25% from the next day to the full payment date.

The court costs are assessed against both the defendant and the declaration of provisional execution.

1. Judgment on the main claim

원고는 이 사건 청구원인으로서, 소외 회사가 1983. 7. 23. 원고에게 액면 금 30,000,000원, 발행지 및 지급지 서울특별시, 발행일 위 같은날, 지급기일 1983. 10. 20. 지급장소 피고은행 중앙지점으로 된 약속어음 1매(어음번호 (생략))를 발행, 교부함에 있어 피고은행은 1983. 7. 23. 위 약속어음상에 위 어음금의 지급보증(보증번호 1200번)을 하였던바, 위 약속어음의 소지인인 원고는 위 약속어음을 지급장소에서 그 지급을 위한 제시를 하였으나 지급거절 되었으므로 어음보증인인 피고은행에 대하여 위 약속어음의 액면금원의 지급을 구한다고 주장함에 대하여, 피고은행은 위 약속어음상에 지급보증을 한바 없고 위 약속어음상에 기재되어 있는 지급보증부분은 위조되었으므로 원고의 청구에 응할 수 없다고 항변하므로 살피건대, 발행부분과 지급보증 부분에 찍혀 있는 인영 및 그 명판에 관하여 성립에 다툼이 없는 갑 제1호증의 1(약속어음 전면 : 뒤에서 인정하는 바에 의하면 피고의 증거항변과 같이 위 약속어음상의 지급보증부분은 위조되었음을 알 수 있다), 성립에 다툼이 없는 갑 제1호증의 2(약속어음 부전), 을 제1호증의 3, 4, 5(공소장 표시 및 동 내용), 같은 호증의 6(부정지급보증어음발행일람표), 같은 호증의 10(약속어음할인 일람표), 같은 호증의 11 내지 14(각 공판조서), 을 제2호증의 4 내지 11 및 16내지 22(각 피의자신문조서), 을 제3호증의 2, 3(판결문 표지 및 내용), 을 제4호증의 1, 2(보고서양식, 보증지침), 을 제5호증의 1, 2(통첩집 표지 및 내용)의 각 기재와 당심증인 소외 8의 증언 및 변론의 전취지를 종합하면, 소외회사의 회장으로 있던 소외 1과 그 대표이사로 있던 소외 2는 1980. 1.경부터 소외회사의 자금난을 해소하기 위하여 소외회사의 거래은행인 피고은행 중앙지점의 직원들과 공모하여 그들로 하여금 어음지급보증에 필요한 피고은행 중앙지점 명의의 고무명판과 직인등을 소외회사로 가져오도록 한후 이를 사용하여 피고은행 본점의 지급보증 승인 한도액을 넘어서 임의로 소외회사가 발행한 약속어음들에다가 피고은행 중앙지점 명의의 고무명판과 지점장 직인등을 날인하는 방식으로 위 약속어음들의 지급보증부분을 위조한 다음 위 약속어음상의 지급보증부분이 피고은행에 의하여 정당하게 이루어진 것으로 가장하여 이를 사채시장이나 단자회사에 유통시켜 소외회사의 자금을 조달하여 왔던 사실, 1983. 6. 중순경 피고은행 중앙지점의 대부 담당대리 및 행원으로 있던 소외 3, 4는 위 지점에서 지점장을 대행하여 피고은행이 선정한 적격업체가 발행한 약속어음의 지급보증 업무를 담당하여 오고 있었음을 기화로 소외 1, 2의 부탁을 받고 피고은행의 업무시간이 끝난이후에 위 지점의 금고안에 보관되어 있던 위 지점의 지급보증용 고무명판과 지점장 직인 및 그당시 위 지점의 지점장으로 있던 소외 5의 서명명판을 몰래 꺼내어 절취한 다음, 소외 4가 이를 가지고 나와 위 지점부근의 옥호불상식당에서 소외회사의 직원으로서 소외 1의 개인비서로 있던 소외 6을 만나 위 지급보증에 필요한 피고은행 중앙지점장명의의 고무명판과 직인등을 소외 6에게 교부하여 주고, 이를 교부받은 소외 6은 소외 1의 지시에 따라 이 사건 약속어음용지(번호 (생략))를 비롯하여 백지의 약속어음용지 1,100매의 각 좌측상단에 피고은행 중앙지점 명의의 지급보증용 고무명판과 지점장의 서명명판 및 지점장 직인을 각 날인함으로써 이 사건 약속어음의 지급보증부분을 위조하였던 사실, 1983. 7. 26. 소외회사의 회장실에 소외 1의 비서로 있던 소외 7이 소외 1의 지시에 따라 위와 같이 지급보증부분이 위조된 이 사건 백지약속어음상에 액면 금 30,000,000원, 발행일 1983. 7. 23. 지급기일 1983. 10. 20. 발행지 및 지급지 서울특별시, 발행인 소외회사로 각 보충기재하여 어음요건을 완성한 다음 그 무렵 이를 증권회사를 통하여 원고에게 할인, 교부하였던 사실 등을 각 인정할 수 있고 달리 반증이 없다.

Thus, since the part of the promissory note of this case guaranteed by the defendant bank was forged by the above non-party, the defendant is not obliged to pay the face value of the said promissory note as the guarantor, unless there are special circumstances.

However, the plaintiff, as an agent in charge of loan and administration of the central branch of the defendant bank, is comprehensively authorized by the head office of the non-party bank, and the non-party 3 and the non-party 4 have basic power of representation to the extent of obtaining the approval of the head office of the defendant bank. Thus, even if the non-party directly guaranteed payment on the promissorysory note in the name of the non-party 5, the head of the central branch office of the defendant bank, even though the above non-party exceeded the limit, the plaintiff, who is the addressee of the above promissorysory note, believed that the above payment guarantee was duly made by the person with the authority of the defendant bank, and there was a justifiable reason to believe that the above payment guarantee was made legally by the person with the authority of the defendant bank. Thus, the defendant bank is obligated to pay the above promissorysory note in accordance with the legal principle of expression agent under Article 126 of the Civil Act. However, since the non-party 3 and the non-party 4 received the above payment guarantee notice through the securities company, the plaintiff's act of forgery and it cannot be rejected.

Furthermore, even if the payment guarantee portion of the Promissory Notes of this case is forged and void, the defendant bank is obligated to pay the above Promissory Notes to the plaintiff. Thus, in full view of the results of inquiries into the Minister of Finance and Economy and the President of Bank Supervision of the Bank of Korea, and the whole purport of oral argument, the defendant bank, upon the resolution of the board of directors, determined the policy to pay the above amount to the holder of the Promissory Notes after examining the requirements of the Promissory Notes in order to prevent economic confusion that would be caused by the non-party company's refusal of payment, and the external public trust and good faith of the financial institution, even if the payment guarantee portion of the Promissory Notes issued by the non-party company was forged, and there was a case where the above payment guarantee portion was actually paid to the holder of the Promissory Notes. However, this is merely a mutually beneficial measure, and ratification is an expression of the other party to convert the invalid act into force. Thus, it cannot be said that the plaintiff's genuine acceptance of the above payment guarantee portion cannot be acknowledged as invalid after the expiration of the above payment guarantee period.

2. Judgment on the conjunctive claim

In full view of the above evidence and the purport of oral argument, the non-party 3 and the non-party 4, who were acting as an agent or an employee of the central branch of the defendant bank, are responsible for the payment guarantee of the promissory note arising from the non-party 1 and the non-party 2, who were the president of the non-party company, at the request of the non-party 1 and the representative director of the non-party 2, on June 1983, the non-party 1 and the non-party 2, who were acting as the president of the non-party company, conspired with the non-party 4, who were acting as the president of the non-party company, to whom the non-party 4 had been responsible for the above payment guarantee of the above branch, and then, the non-party 6, who was an employee of the non-party 4, had the non-party 5's signature and seal affixed to the non-party 6's above payment guarantee of the non-party 1 and the non-party 8's real payment guarantee of the above promissory note.

The defendant's letter of payment guarantee stated in the above bill is conditional guarantee that the payment is guaranteed by the due date, and even if the above guarantee portion was actually prepared, if the payment is not presented by the due date, the defendant can not seek performance of the liability for payment guarantee. Therefore, since the plaintiff who presented the above bill after the due date of payment guarantee is asserted to have no damage as a result, it is argued that there is no damage to the plaintiff who presented the above bill after the due date of payment guarantee, in the payment guarantee for the issuer of health expenses and the bill, if the scope of the liability for the guarantee is limited by setting the due date of payment guarantee, the payment guarantee shall not be effective, and the payment guarantee shall not be effective

The defendant asserts that when the plaintiff presented a bill to pay on the date of payment, it would have been able to receive the bill, and that the plaintiff's negligence should be taken into account in determining the scope of compensation for damages. Thus, in order to prevent confusion caused by the defendant bank's refusal of payment, the presentation of payment within the period for the presentation of payment was recognized as above. However, it is nothing more than a beneficial measure due to political consideration, and if it is not paid as a result of the performance of a bill, it cannot be viewed as the plaintiff's negligence. Meanwhile, even if the bill was presented within the period of payment, it is not extinguished until the expiration of the prescription period of rights under the bill, and therefore, the issuer's liability of payment guarantee for the drawer is not extinguished. Thus, unless the scope of the obligation does not change within the presentation of payment, the plaintiff's negligence cannot be accepted in the process of acquiring the bill, and thus, it cannot be accepted that the plaintiff's negligence was not caused or expanded by the presentation of payment within the period of payment. Therefore, the plaintiff's negligence cannot be found in the process of acquisition of the bill.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff damages with 28,636,00 won and damages for delay at the rate of 5% per annum from October 21, 1983 to November 26, 1984, which the plaintiff sought from October 21, 1983, which is the date of the imposition of the judgment (the plaintiff claimed damages for delay at the rate of 25% per annum from the date on which the notice was made, but Article 3 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings is not applicable since there are grounds under Article 3 (2) of the same Act, and the damages for delay at the rate of 25% per annum from the next day to the full payment date under Article 3 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and there is no reason to dismiss the remainder of the conjunctive claim, and the plaintiff's remaining damages against the plaintiff are dismissed.

Judges Jeong Jin (Presiding Judge)