[1] The meaning of a financing bill and whether it is a financing bill where the issuer of the financing bill requests discount and delivers a bill of exchange (negative)

[2] The defense against bad faith during the defense of the bill of exchange

[3] The case holding that Gap may oppose Byung as a human defense in a case where Byung acquired a bill issued by Eul for the purpose of discount to Eul and disposed of it as a security for Eul's obligation with the knowledge of such fact

[1] The term "loan bill" refers to a bill which is received by another person for the purpose of having a third party obtain financing from a third party by a bill, and the defense as to such loan bill cannot be asserted against the third party, regardless of good faith or bad faith. Thus, the issue of which a bill constitutes a loan bill as mentioned above shall not be based only on the party's assertion, but also on the basis of specific facts. In the case where the issuer of a bill requested discount and the bill was delivered at the request of the issuer, it shall be limited to the bill issued without any cause, and it shall not be deemed as a so-called loan bill which does not recognize a defense against bad faith.

[2] The so-called malicious defense is insufficient to recognize the existence of the defense, and it is also necessary to know the fact that the defense is cut off by acquiring the bill and the debtor is harmful to the obligor.

[3] The case holding that, in case where Gap issued a bill to Eul for the purpose of discount, and Byung knowingly acquired it with Eul's request and disposed of it as security for Eul's loan obligations, since the bill is delivered to Byung without any cause, it can be set up against Byung as a human defense for such cause relations

[1] Articles 16 (2) and 17 of the Bills of Exchange and Promissory Notes Act / [2] Article 17 of the Bills of Exchange and Promissory Notes Act / [3] Article 17 of the Bills

[1] Supreme Court Decision 86Meu1954 delivered on January 19, 198 (Gong1988, 446) Supreme Court Decision 94Da50489 delivered on January 20, 1995 (Gong1995Sang, 896), Supreme Court Decision 94Da54856 delivered on September 15, 1995 (Gong195Ha, 3377)

Choung Bank (Attorney Kim Jong-hwan, Counsel for the plaintiff-appellant)

Defendant (Attorney Han-ho et al., Counsel for the defendant-appellant)

Seoul District Court Decision 94Na9480 delivered on November 30, 1995

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

We examine the grounds of appeal.

The First Ground for Appeal

The court below accepted the plaintiff's defense against the defendant's bad faith by accepting the plaintiff's claim for a bad faith on the ground that the non-party 1's request for discount of the issuance of the above company was received by the non-party 1, the non-party 2, the director in charge of the party branch Eul's branch, and the non-party 1's above non-party 1's office was received with the above non-party 1's discount of the bill. The above non-party 2 received this bill from the above non-party 1. The above bill was a financing bill in that the bill was issued for financing without any substantial cause. However, since the above trading industry was ordered to pay discount upon the issuance of the bill to the non-party 1 for his own financing, unlike the original intent of the issuer in this case, if the purchaser acquired the bill with the knowledge of the above situation, it was distributed against the issuer's trust.

However, the so-called financing bill refers to a bill which is received by another person for the purpose of having the person obtain financing from a third party by the bill, and the defense of such financing bill cannot be asserted against the third party regardless of good faith or bad faith. Thus, the issue of whether a bill constitutes a financing bill as mentioned above shall not be decided only by the party's assertion, but also by specific facts. In this case, as recognized by the court below, if the non-party name industry requested discount to the above non-party 1 and the bill was delivered, it shall be limited to a bill issued without any cause, and it shall not be deemed a so-called financing bill which does not recognize a defense against bad faith. The court below's decision that this case is a financing bill is erroneous. However, as long as it is justified in the conclusion of dismissing the plaintiff's claim as seen below, it shall not be justified to argue that this case is a financing bill under the premise that this case is a financing bill.

The Second Ground of Appeal

The so-called malicious defense is insufficient to recognize the existence of the defense, and it is also necessary to know the fact that the defense is cut off by acquiring the bill and the debtor is harmful to the defendant. Thus, under the facts acknowledged by the court below, the plaintiff cannot be deemed to have acquired the bill of this case with the knowledge that the plaintiff was detrimental to the defendant. Thus, it is erroneous for the court below to accept the defendant's defense only by the above facts and reject the plaintiff's claim.

However, this case's bill is not a financing bill, and according to the evidence adopted by the court below, as alleged by the defendant, so long as it appears that the above non-party 2 received discount from the above non-party 1 and possessed this case's bill and disposed of it as a security for the loan obligations against the non-party 1, this case's bill is deemed to have been delivered to the plaintiff without any cause. Thus, the non-party 2 can oppose the plaintiff as a human defense for these causes relations. Thus, the above error of the court below is without merit. The argument is without merit.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)