[1] The other party to the revocation of the issuance of a bill by deception and the scope of its validity

[2] The nature of defense that there is a defect in declaration of intent in the bill of exchange

[1] In a case where the issuance of a bill is cancelled on the grounds of a defect in the expression of intent such as fraud, it is reasonable to view that the declaration of intent for cancellation can be made not only to the other party to the act of the issuance of the bill but also to the holder who has acquired the bill from the other party to the act of the issuance of the bill and demanded payment of the bill. However, such declaration of intent cannot be set up against the third party acting in good faith. In this case, the third party refers to a person other than the other party to the act of the issuance of the bill. Thus, the issuer of the bill can express his/her intention for cancellation against the holder who is not the other party to the act of the issuance of the bill and can not claim the effect of the cancellation regardless of

[2] The defense that there is a defect in declaration of intention such as mistake, fraud, and mistake in the act of a bill is merely a personal defense against the other party to the act of a bill. Thus, unless the holder has acquired a bill with the knowledge that the holder would harm the debtor, the debtor cannot oppose against the holder due to personal defense against the former holder, even though the holder was unaware of such fact with gross negligence.

[1] Articles 16, 17, and 77 of the Bills of Exchange and Promissory Notes Act; Article 110 (3) of the Civil Code / [2] Articles 16, 17, and 77 of the Bills of Exchange and Promissory Notes Act

[1] Supreme Court Decision 89Da1084 delivered on April 13, 1990 (Gong1990, 1062), Supreme Court Decision 94Da30201 delivered on November 22, 1994 (Gong1995Sang, 73) / [2] Supreme Court Decision 70Da1293 Delivered on July 28, 1970 (Gong1992, 2759), Supreme Court Decision 92Da22053 Delivered on August 18, 1992 (Gong1992, 2759), Supreme Court Decision 92Da22053 Delivered on August 18, 199 (Gong192, 2759), Supreme Court Decision 94Da23095 delivered on November 18, 1994 (Gong23965 delivered on September 16, 195)

Kim Jong-gu

Maximum Disease (Attorney Cho Hong-soo, Counsel for the defendant-appellant)

Seoul District Court Decision 96Na15359 delivered on October 9, 1996

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. On the first ground for appeal

According to the reasoning of the judgment below, on November 5, 1994, the court below rejected the plaintiff's assertion that the plaintiff received endorsement and transfer of the Promissory Notes from the non-party on November 20, 1994 at par value 50,000,000, and on January 20, 1995 (hereinafter "the Promissory Notes"), and the non-party changed the payment date of the Promissory Notes into April 20, 1995, and exempted the plaintiff from the obligation to prepare a certificate of non-payment and transferred the Promissory Notes to the plaintiff in blank endorsement, and confirmed that the plaintiff was the final holder of the Promissory Notes altered by the plaintiff. The court below rejected the plaintiff's assertion that there was no evidence supporting the defendant's assertion that the Promissory Notes was received from the non-party on January 20, 1995, which was the previous payment date of the Promissory Notes. Thus, the court below rejected the plaintiff's assertion that the plaintiff's act of acquiring the Promissory Notes cannot be accepted.

2. On the second ground for appeal

In the case of cancelling the act of issuing a bill on the grounds of a defect in the declaration of intent such as fraud, it is reasonable to view that the declaration of intent of cancellation can be made not only to the other party directly to the act of issuing the bill but also to the holder who requests the payment of the bill after acquiring the bill from the other party to the act of issuing the bill. However, the cancellation of such declaration of intent cannot be asserted against the third party in good faith (Article 110(3) of the Civil Act). Since the third party refers to a person other than the other party to the act of issuing the bill directly, it is not possible for the issuer to express his/her intention of cancelling the act of issuing the bill against the holder who is not the other party to the act of issuing the bill, and thus, it is not possible to assert the effect of the cancellation regardless of the good faith or bad faith of the holder. The grounds of appeal pointing out

3. On the third ground for appeal

The defense that there is a defect in declaration of intention, such as mistake, fraud, and mistake, is merely a personal defense against the other party to the act of a bill. Thus, unless the holder has acquired a bill with the knowledge that the holder would harm the debtor, the debtor cannot oppose the previous holder due to personal defense against the previous holder, even though the holder was unaware of such fact by gross negligence (see Supreme Court Decisions 70Da1293 delivered on July 28, 1970; 95Da5603 delivered on March 22, 196, etc.).

According to the reasoning of the judgment of the court below, although the defendant issued the bill of this case by fraud of the non-party, it is not clear that the bill of this case was altered to '1' during the payment period, and it is not clear that the alteration is made. Even if the plaintiff did not confirm directly or indirectly the defendant's credit status, the non-party's status, and whether the bill of this case was acquired by mistake at the time of acquiring the bill of this case, it is insufficient to conclude that the plaintiff was negligent by gross negligence at the time of acquiring the bill of this case, and there is no other evidence to support this, since the plaintiff was not aware of such circumstance due to gross negligence at the time of acquiring the bill of this case even though the bill of this case was acquired by fraud of the non-party, it is not sufficient to judge the defendant's defense that the plaintiff cannot be deemed a legitimate right holder. Accordingly, the judgment of the court below is not just because it is erroneous in the misapprehension of legal principles as to gross negligence as pointed out in the ground of appeal.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)