A. Purport of a separate deposit system and whether a bank which received a separate deposit may return it to the drawer of the bill or set off against the opposite claim, before it proves that the holder of the bill is not a legitimate holder (negative);

(b) The case holding that if the holder of a bill is proved to be a legitimate right holder, and he fails to submit to a bank a document proving that he is still pending in a lawsuit within the period stipulated in the clearing house agreement, and there is a reason attributable to a bank, it cannot be allowed for a bank to set off a separate deposit with multiple bonds as it constitutes an abuse of rights in violation

A. In cases where the debtor of a promissory note originally deposited money equivalent to the amount of the note with a separate deposit account when requesting a payment suspension of payment of the note with a declaration of accidents on the grounds of the theft or loss of the note, unlike the general deposit claims, the purpose of this separate deposit is to prevent abuse of the report of accidents to avoid default, and to guarantee payment of the relevant bill in cases where the rights on the bill are verified by the holder of the bill. Therefore, in relation to the relevant bill creditor who seizes the separate deposit claims, set-off against the bank whose deposit is a passive bond cannot be permitted in principle. If the bank in receipt of the deposit proves that the holder is a legitimate holder, it is not a matter of principle to return it to the issuer of the bill without permission or set-off it against the opposite claim before it is proved that the holder is not a legitimate holder. This goes against the purpose or intent of making the amount of accident reported security deposit as a separate deposit.

(b) The case holding that if the holder of a bill is proved to be a legitimate right holder, and he fails to submit to the bank a document proving that he is still pending in a lawsuit within the period stipulated in the clearing house agreement, and there is a reason attributable to the bank, it cannot be allowed for the bank to set off a separate deposit with multiple bonds as it violates the principle of trust and good faith or

Articles 2, 492, and 702 of the Civil Act

A. Supreme Court Decision 87Meu800 Decided January 31, 1989 (Gong1989, 337)

Plaintiff

[Defendant-Appellee] Korea Commercial Bank Co., Ltd. and four others

Seoul High Court Decision 91Na66270 delivered on May 13, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. The facts established by the court below are as follows.

A. On April 9, 1990, Nonparty 1 issued the Promissory Notes in this case’s face value of KRW 15,000,000 on July 9, 199, at the place of payment, at the Defendant Bank’s branch and Nonparty 2. Nonparty 3 reported that he was lost while holding the Promissory Notes. On the same day, Nonparty 1, the issuer, requested the Defendant Bank to refuse to pay the Promissory Notes, and deposited KRW 15,000,000 equivalent to the said Promissory Notes as a separate deposit.

B. On January 10, 191, the Plaintiff, as the last holder of the Promissory Notes, presented a payment proposal at the Defendant bank's LIS branch on the date of the payment, but was refused to pay the Promissory Notes on the ground of the receipt of the accident, and was sentenced to a judgment in favor of the Plaintiff on January 10, 191, which was rendered in favor of the Plaintiff in the provisional execution declaration book against the above Nonparty 1. On February 11, 1991, the above Nonparty 1 received a seizure and collection order on the claim for refund of KRW 15,00,000, which was against the Defendant bank. The above collection order was served on the Defendant bank

C. The above non-party 1 entered into an agreement with the defendant bank to dispose of the above amount of security when depositing the money in the defendant bank. The content of the agreement was to ensure that the above report was not a false report to avoid the shortage of funds, and that the bill holder is a legitimate right holder, in order to appropriate the money for the payment. Thus, in cases where the bill holder is found to be a legitimate right holder in accordance with the Seoul Bills of Exchange and Promissory Notes, the defendant bank shall pay the above amount of security to the bill holder upon the request of the holder of the bill, and in cases where it is proved that the right to claim against the holder of the bill is not legitimate, the right to claim the above amount of security shall be attributed to the above non-party 1, the depositor. Meanwhile, in the Seoul Bills of Exchange and Promissory Notes, if the bill holder prevails in the lawsuit against the bill of exchange, submits the certificate of confirmation, etc., or the bill issuer consented and submits the certificate to the bill with the bill holder's consent, the payment bank shall pay the money to him at the request of the holder of the bill.

D. The Defendant bank did not submit a document attesting that the lawsuit is in progress from interested parties until six months have passed after the date of presentment for payment of the Promissory Notes. On January 9, 1991, when six months have passed since the date of presentment for payment of the Promissory Notes, the instant accident reported collateral was reverted to Nonparty 1, the issuer of the said Promissory Notes. The said Nonparty 1 was subject to the disposition of transaction suspension from the clearing house on August 8, 1990, and the Defendant bank had the credit card usage deposit and installment savings loan and the principal and interest on the same as of January 25, 191, on which the Defendant bank expressed its intent to offset the claim KRW 15,00,000 from the amount equivalent to the above accident reported credit against the Defendant bank as its automatic bond.

E. While the Plaintiff proposed to pay the Promissory Notes to the Defendant bank, but the Plaintiff was refused to pay the Promissory Notes on the ground of the receipt of the accident, the Plaintiff confirmed the fact that the said Nonparty 1 deposited the accident report security money, and sought to find it several times at the Defendant bank's annual branch office to file a lawsuit against the Nonparty 1, and requested the Plaintiff to contact with the Plaintiff if Nonparty 1 appeared, and the Plaintiff's telephone number was written to Nonparty 4. However, the Defendant bank did not submit a document proving that the interested party is still pending in the lawsuit in connection with the relevant Promissory Notes and did not notify the Plaintiff of the contents of the rules of the Seoul Promissory Notes Exchange Office, where the right to claim the return of the said accident report security belongs to the issuer of the Promissory Notes.

F. On September 21, 1990, the Plaintiff filed a lawsuit claiming the payment of promissory notes against the above non-party 1 as above, and was sentenced to a favorable judgment on January 10, 1991, the Defendant bank rejected the payment on the ground that: (a) found at the Defendant bank’s office and branch of the Bank’s office on January 15, 191; (b) notified the facts of winning the said accident; and (c) requested the payment of the said accident report security; (d) did not present the judgment; and (e)

G. On February 6 of the same year, the Plaintiff notified the Defendant Bank of the receipt of a favorable judgment in writing, along with the copy of the above judgment, and received the instant collection order on the 11st of the same month, wherein the Defendant Bank was the garnishee.

2. The judgment of the court below

A. The amount of the instant accident reporting security is to ensure that the issuer’s report on the accident was not a false report in order to avoid transaction suspension in order to avoid the shortage of funds, and to prevent abuse of the report on accident in order to avoid sanctions against the issuer of the bill, as well as to guarantee the payment of the bill in cases where the rights of the holder of the bill are confirmed, and the holder of the bill is expected to be entitled to preferential payment of the bill with the amount of the accident reporting security deposit. Thus, the payment bank, when there exists the above agreement or agreement with the issuer of the bill, shall notify the holder of the bill of the contents thereof at the time of presentment of payment of the bill, and have the holder of the bill take necessary measures, such as submission of a document proving that the bill is still pending at the time of presentment of payment of the bill, and even if six months have passed after the date of presentment of payment in accordance with such agreement or agreement, it is proved that the holder of the bill is not a legitimate holder, or even if the holder of the bill exercised his rights at the bank with a considerable time, shall not be deemed as offset against the holder.

B. However, in this case, even though the Plaintiff presented a lawful payment proposal at the due date of the bill of this case and explicitly expressed his intent to exercise the right to the above amount of the accident report security, the Defendant bank could not directly claim the amount of the accident report security against the Defendant bank in its name because it did not notify the Plaintiff that it is necessary to submit a document to prove that the lawsuit is in progress within six months, and the Plaintiff could not claim the amount of the accident report security against the Defendant bank under its own name. On the date six months have elapsed since the date when the payment was presented, the Plaintiff notified the Plaintiff that he was awarded a favorable judgment against the Plaintiff, who was the issuer of the bill, but refused the payment of the above accident report security deposit, and then, the Defendant bank expressed its intent of offset on the ground that the opposing claim against the above Nonparty 1 and the claim for the return of the accident report security deposit against the Plaintiff as of January 25, 191. This is not recognized as being abuse of the right of offset in relation to the Plaintiff, a legitimate holder of the bill of exchange.

3. According to the records, the fact-finding by the court below is acceptable, and there is no violation of the rules of evidence, and if the facts are as recognized by the court below, the defendant's exercise of the right of set-off constitutes an abuse of rights, and there is no violation of law by misunderstanding the legal principles of abuse of rights.

4. Where the debtor of a promissory note originally deposited money equivalent to the amount of the note with a separate deposit account when requesting a payment suspension of payment of the note with a declaration of accidents on the grounds of the theft or loss of the note, unlike the general deposit claim, the purpose of this separate deposit is to prevent abuse of the report of accidents to avoid default and to guarantee payment of the relevant bill in the event that the rights of the holder on the bill can be verified, unlike the general deposit claim, and therefore, the set-off of the bank against the check-up claim is not allowed in principle in relation to the relevant creditors who seize the separate deposit claim (see, e.g., Supreme Court Decision 87Meu800, Jan. 31, 1989). If the bank in receipt of the deposit proves that the holder is a legitimate holder, it should be paid to the payer without permission, or set-off against the opposing claim before it is proved that the holder is not a legitimate holder, which goes against the purpose or purpose of the separate deposit account.

Therefore, in this case, even if the defendant bank entered into an agreement with the plaintiff, and the rules of the Seoul Bills of Exchange and Promissory Notes (Seoul Bills of Exchange) became effective as above and six months have passed after the date of presentment, the plaintiff was proved to be a legitimate right holder, and if the plaintiff did not submit a document proving that his claim is in progress within six months, and the reason for the failure is attributable to the defendant bank, if the defendant bank is found to be a legitimate right holder, it would be reasonable to view that set-off of the above separate deposit with the defendant who is the payment bank, in case where it is proved that the original bill holder is a legitimate right holder in order to collect his claim, set-off of the separate deposit with the money deposited in order to cover the money to be paid is against the principle of trust and good faith or constitutes an abuse of rights. Therefore, there is no reason to discuss this issue.

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

Justices Choi Young-young (Presiding Justice)