Plaintiff (Attorney Kim Young-chul et al., Counsel for the plaintiff-appellant)

National Agricultural Cooperative Federation and two others (Law Firm No. LLC et al., Counsel for the plaintiff-appellant)

March 8, 2012

Suwon District Court Decision 2009Da44654 Decided July 16, 2010

1. The portion of judgment in the first instance against Defendant National Agricultural Cooperative Federation and Defendant 2 shall be modified as follows:

A. Defendant National Agricultural Cooperative Federation and Defendant 2 shall pay to the Plaintiff 80 million won and 6% interest per annum from June 1, 2009 to the date of full payment, subject to the confirmation of the judgment revoking the judgment of nullification as to the checks listed in the separate sheet 2009KaGong309.

B. The plaintiff's National Agricultural Cooperative Federation and defendant 2's remaining claims are dismissed.

2. The part concerning the claim for damages against Defendant 3 in the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the revocation part is dismissed.

3. The defendants' remaining appeals are dismissed.

4. Of the total litigation cost between the Plaintiff, Defendant National Agricultural Cooperative Federation, and Defendant 2, 1/10 shall be borne by the Plaintiff, the remainder by the Defendants, and the total litigation cost between the Plaintiff and Defendant 3 shall be borne by the Plaintiff and Defendant 3 respectively.

1. Purport of claim

A. The Suwon District Court's Sung-nam Branch revoked the judgment of nullification rendered on September 23, 2009 with respect to the checks listed in the separate sheet on September 23, 2009 in the case of application for public summons 2009 Chicago309, and dismissed the application for the judgment of nullification with respect to the said checks.

B. The defendants shall pay to each plaintiff 80 million won with 6% interest per annum from June 1, 2009 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment (However, to Defendant National Agricultural Cooperative Federation and Defendant 2, the above amount shall be claimed as principal and conjunctive payment).

2. Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the revocation part is dismissed in entirety.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by taking into account the whole purport of the arguments in relation to Gap's evidence 1 through 4, Gap's evidence 6, 9, Gap's evidence 16-15, Eul's evidence 1-5 (including each number), Eul's evidence 14-3, part of non-party 1's testimony of non-party 1 and the fact-finding with respect to non-party 1's non-party 1's testimony of the court of first instance and the fact-finding with respect

A. On May 29, 2009, Defendant 3, who is an employee of Defendant 2, requested the issuance of cashier’s checks at the branch of the Defendant National Agricultural Cooperative Federation (hereinafter “Defendant Union”) to the branch of the branch of the branch of the branch of the Bank of Korea (hereinafter “Defendant Union”) and issued and issued a check in the separate sheet of 80 million won per face value (hereinafter “instant check”) from the said branch, and delivered it to Defendant 2.

B. On the same day, Defendant 2 and Nonparty 2 requested the Plaintiff to return documents related to interest reduction and exemption, and claims, together with Nonparty 2, who appeared in company with the Plaintiff, in lieu of paying the Plaintiff’s existing debt at the Liberian shop located in Gangnam-gu Seoul, Gangnam-gu, Seoul, for whom the Plaintiff did not comply with the request, but had Defendant 3 receive an accident report on the instant check at the headquarters of the Defendant Union.

C. On June 1, 2009, the Plaintiff delegated the collection of the instant check to the Bank and presented payment to the Defendant Association branch through a clearing house, but was denied on the ground of the receipt of the accident report.

D. Meanwhile, on June 5, 2009, Defendant 3, upon Defendant 2’s instruction, issued a certificate of non-payment at the branch of the party branch of the Defendant Union (in the case of the instant check) on June 5, 2009, Defendant 3 filed an application for a public summons on the instant check on the grounds that “the applicant, as the last holder of the instant check, lost the instant check at the Seoul Cheongdo-dong, Gangnam-gu, Seoul Cheongdo-dong, and has not been recovered until now, at around 15:30 on May 29, 2009, filed an application for a public summons on the instant check with Sung-gu Branch Branch Branch 2009KaGong309, and made a statement on September 23, 2009 to the effect that the cause of the application for public summons and the judgment of nullification were sought on the date of the public summons. The said court rendered a judgment of nullification that invalidated the instant check on the same day

E. On September 23, 2009, Defendant 3 demanded the payment of the check money based on the judgment of nullification of the instant case, Defendant 3 paid KRW 800 million to Defendant 3 on the same day.

F. On October 6, 2009, the Plaintiff confirmed the case number of the nullification judgment of this case and perused and copied the application form for the public summons and the text of the nullification judgment, and filed the instant lawsuit against the nullification judgment of this case on November 5, 2009.

G. The operating manual of the Defendant Union provides for the following provisions concerning the report on accidents by cashier’s checks (in this case, only parts related thereto shall be extracted and entered).

(4) If the judgment of nullification pursuant to a public summons is likely to become final and conclusive first, the holder shall be instructed to report his/her right to the public summons (payment of an accident check). (1) When the person who reported the accident has agreed on the request for payment of the accident check, the payment may be made only in the following cases: (a) when the person who reported the accident has submitted the judgment of nullification after receiving the judgment of nullification, and a request for payment of the deposit has been made, the original copy of the judgment of nullification and the written request for payment shall be made. The seal imprint affixed on the written request for the deposit shall be consistent with the seal imprint affixed on the written request for the judgment of nullification: Provided, That if the person who reported the accident subject to the judgment of nullification has affixed his/her own seal on the written request for the deposit, the payment may be made by signing on the written request for the deposit (the copy of the certificate of real name verification). (b) Even after the judgment of nullification has been postponed, and the payment shall be deferred in the following cases where the document of nullification has been submitted.

2. Judgment on a lawsuit against nullification judgment

A. The plaintiff's assertion

Although Defendant 3 did not actually lose the check of this case, the Plaintiff filed a request for a public summons and received the judgment of this case from the court of the public summons that believed it as true. Thus, the judgment of this case constitutes “where a public summons procedure is not permitted under the law” under Article 490(2)1 of the Civil Procedure Act or “where a judgment of nullification has been issued by a false or unlawful means” under Article 490(2)7 of the Civil Procedure Act, and sought the revocation of the judgment of this case and the rejection of Defendant 3’s request for the judgment of nullification.

B. Determination on this safety defense

The Defendants have asserted that the lawsuit of objection against the nullification judgment of this case is unlawful on the grounds that the period for filing the lawsuit expires.

On the other hand, a lawsuit of objection against a nullification judgment shall be filed within one month from the date on which the plaintiff becomes aware that there has been a nullification judgment pursuant to Article 491(3) of the Civil Procedure Act in the case of filing a lawsuit on the grounds of Article 490(2)1 of the same Act (the time when the procedure for a public summons is not permitted under the law). According to the evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence No. 6, the plaintiff can be acknowledged to the fact that the nullification judgment of this case was known in the course of protesting against the payment of the check money to the head of the branch office on October 1, 2009. Since the lawsuit of objection against the nullification judgment of this case was filed on November 5, 2009, since the plaintiff sought the revocation of the nullification judgment of this case on the grounds of Article 490(2)1 of the Civil Procedure Act, it is unlawful since the period of filing the lawsuit was also the period of filing the lawsuit.

However, the plaintiff may also file a lawsuit against the nullification judgment on the ground of Article 490(2)7 of the Civil Procedure Act (the time when the judgment of nullification was rendered by false or unjust means). In the event that a lawsuit against the nullification judgment was filed on the ground of Article 490(2)7 of the Civil Procedure Act, the plaintiff may file a lawsuit within one month from the date when he became aware of such ground pursuant to the proviso of Article 491(3) of the same Act. In light of the purport of the above proviso, it is evident that the plaintiff knew of the existence of the nullification judgment of this case on October 1, 2009, the plaintiff cannot be said to have known that there was such ground in the nullification judgment of this case. As acknowledged earlier, it is reasonable to view that the plaintiff knew that "the defendant 3 received the nullification judgment of this case by false or unjust means only when he directly inspects the text of the nullification judgment of this case on October 6, 2009," and it is evident that the lawsuit of this case was filed within one month from the record.

The Defendants asserted that the employees at the branch office of the defendant union was aware of the facts stated in the judgment of nullification as provided in Article 490 (2) 7 of the Civil Procedure Act at the latest, but it is insufficient to recognize that the Defendant union employees informed the Plaintiff of the name and contact point of the check reporter by telephone on June 2, 2009, and around October 1 of the same year, the above accident reporter and the applicant for the judgment of nullification was the same person. Thus, the Plaintiff was aware of the facts stated in the judgment of nullification around October 1, 2009. However, there is insufficient evidence to acknowledge that the Defendant union employees informed the Plaintiff of the above information. Thus, the Defendants’ assertion is not accepted (the Defendants’ assertion, even if the Defendants’ assertion was in question, only because the Plaintiff was aware of the facts of this case’s name and contact with the Plaintiff, and it cannot be concluded that the Plaintiff was the Defendant 3’s name and the Defendant did not have any specific grounds for the judgment of nullification.)

Therefore, the lawsuit of objection against the nullification judgment of this case is legitimate within the scope of "when the judgment of nullification has been obtained by fraudulent or other unlawful means" as the cause of the lawsuit. Thus, the defendants' defense of this case is without merit.

C. Judgment on the merits

Even if the former holder of securities or certificates loses the possession of securities, etc. without his own intention, if it is found that a specific person holds the securities, etc. thereafter, the former holder shall request the former holder to return the securities, etc., and no public summons therefor shall be allowed. If the former holder, as he knows, was aware of the whereabouts of the holder of the securities, etc., was present on the date of the public summons and state his intention to seek cause and nullification judgment, thereby deceiving the public summons court, and if the former holder was subjected to the judgment of nullification from the public summons court, it constitutes “when the judgment of nullification has been obtained by false or unjust means” under Article 490(2)7 of the Civil Procedure Act (see Supreme Court Decision 97Da16985 delivered on July 25, 1997).

In the instant case, as acknowledged earlier, Defendant 2 delivered the instant check to the Plaintiff on May 29, 2009 instead of performing the existing obligation to the Plaintiff (in short of the evidence submitted by Defendant 2 and 3 and the testimony by Nonparty 2 of the first instance trial witness alone, it is insufficient to deem that the Plaintiff stolen or acquired the instant check on the ground that the Plaintiff lost the instant check). Defendant 3 applied for a public summons on the date of the public summons on the ground that he lost the instant check and stated the purport of seeking the said cause of request and nullification judgment. In light of these facts, the instant check was issued on the basis of Defendant 2’s intention, and it does not constitute the securities stolen, lost, or destroyed, and thus does not constitute the subject of the public summons procedure, even though Defendant 3 was unaware of the court of the public summons as if he had lost the instant check, and this constitutes “when the judgment of nullification was obtained by any false or unjust means” as provided in Article 490(2)7 of the Civil Procedure Act.

Therefore, the plaintiff, who is the holder of the check of this case, has a ground to appeal against the judgment of nullification.

3. Determination on the claim for the check money (the defendant union and the defendant's primary claim against the defendant 2)

A. Determination on the cause of the claim

As seen earlier, the judgment of nullification should be revoked on the ground that the Plaintiff’s appeal for objection to the judgment of nullification is with merit, and barring any special circumstance, the Defendant Union is the drawer of the instant check, and Defendant 2 is liable to pay the amount of the check jointly to the Plaintiff, who is a lawful holder of the instant check.

B. Determination of the defendants' assertion

(1) Defendant Union’s assertion of performance to quasi-Possessors of claim

The Defendant Union asserts that the payment of the check money to Defendant 3 is valid as repayment to quasi-Possessors of the claim, and thus, the Defendant Union’s obligation to pay the check money was extinguished.

Even if a payment bank to a person who received a nullification judgment loses its retroactive effect after the payment of the check, the payment bank shall be deemed to be a quasi-Possessor of the claim at the time when the payment bank made the payment. Thus, the payment bank shall be exempted unless it is bona fide and without negligence (see Supreme Court Decision 97Da4966 delivered on March 12, 199).

However, in this case, if the following circumstances are acknowledged by the above evidence, namely, the check of this case is valuable securities with a face value of 80 million won and its function and strong circulation is guaranteed as a means of payment. Thus, in exceptional cases where the payment of check money to the person holding the judgment of nullification is not the last holder of the check, the Plaintiff presented a payment within the period of payment. In this case, the Plaintiff directly visited the employee at the branch office of the Defendant Union and asked the Plaintiff to inform the employee of the instant check so that he can respond to the Plaintiff. In light of the above, even if the operating rules of the Defendant Union provide for the notification of the right to the public summons to the Plaintiff at least 9 billion won, the above branch office did not provide for the notification of the judgment of nullification to the Plaintiff at least 9 months after the issuance of the certificate of nullification for the first time after the issuance of the judgment of nullification for the purpose of public summons, and thus, it can be seen that the Plaintiff could have been informed of the fact that the judgment of nullification was not submitted by the lower court.

The above assertion by the defendant union is without merit.

(2) Defendant 2’s assertion that the check is null and void because the lawsuit against the nullification judgment becomes final and conclusive.

Defendant 2 asserts that the Plaintiff’s claim of this case should be dismissed, since the check in this case is null and void, so long as the lawsuit of objection against nullification judgment is a form of lawsuit and the judgment of winning is not finalized.

Even if a lawsuit of demurrer against a nullification judgment is possible, the judgment of nullification is formally binding until it is revoked, and accordingly, the holder of the securities cannot exercise his/her rights until the judgment of nullification becomes final and conclusive. However, in this case, although the Plaintiff did not specify in the purport of the claim, the Plaintiff sought payment of the check amount against the Defendant Union and the Defendant 2 on the premise that the lawsuit of objection against the nullification judgment is accepted in the cause of the claim, which constitutes a lawsuit for future performance. In order to be lawful in the future, the legal and factual relationship, which serves as the basis of the claim, exists at the time of closing of argument, and such status is expected to continue to exist (see Supreme Court Decision 95Nu4902, 4919, Nov. 11, 1997). Accordingly, the Plaintiff’s claim against the Plaintiff’s conditional performance of the check cannot be seen as having been clearly stated in the terms and conditions of the claim of this case, as well as in the case where the Plaintiff’s claim against the Plaintiff’s conditional performance of the check can not be established.

Therefore, Defendant 2’s above assertion is without merit.

(3) Defendant 2’s act of delivering the check of this case and assertion of defects in the underlying act

Defendant 2 asserted that the Plaintiff was not a lawful holder of the check of this case since it stolen or stolen the check of this case from Defendant 2 or Nonparty 2, but it is not sufficient to acknowledge that only some of the entries in the evidence No. 16-4, No. 7, No. 2, No. 3, No. 14-1, No. 14-2, No. 11, and No. 23 of the evidence No. 16-2, and Non-Party 2’s testimony of the first instance trial witness of this case are insufficient (the above evidence is all the evidence No. 2 and No. 3 as of May 29, 2009 when the Plaintiff acquired the check of this case with the plaintiff and the defendant No. 2, No. 2, and No. 3 stated the statement about the situation at that time, and there is a difference between the above statement and the above situation at that time, and if the Plaintiff could not be delivered the claim of this case to the Plaintiff or the non-party 2, even if it could not be delivered it.

In addition, Defendant 2 argues that all basic agreements that caused the issuance and endorsement of the check of this case were invalid or revoked by the Plaintiff’s coercion, and thus, Defendant 2 may oppose the Plaintiff’s claim for the payment of the check of this case on this ground. However, it is insufficient to recognize that Defendant 2’s obligation which caused the delivery of the check of this case was due to the Plaintiff’s conflict and intimidation, and there is no other evidence to prove otherwise.

Defendant 2’s above assertion is without merit.

4. Determination as to the claim for damages arising from the tort against Defendant 3

A. The assertion

The Plaintiff asserts that Defendant 3 was liable to pay KRW 800,000 to the Plaintiff with the judgment of nullification in a false manner and paid KRW 800,000,00 to the Plaintiff.

B. Determination

If a request for a public summons is made in the court on the ground of a false assertion, and furthermore, as he knows his whereabouts, appears on the date of the public summons to state the cause of the request and the purport of seeking a nullification judgment, and deceptions the public summons court, and its appurtenances are subject to a nullification judgment that takes effect simultaneously with the declaration by the court of public summons, the check becomes null and void as a passive effect of the public summons, and the holder of the check is not entitled to exercise his rights on the check, and the holder of the check is not entitled to exercise his right to claim a reimbursement of benefit on the premise that he is a lawful holder of the check. Therefore, in principle, the person holding the public summons is liable for compensating the holder of the check for damages caused by a tort (see Supreme Court Decision 88Da7962, Jun. 13, 1989). However, even if the nullification judgment was revoked by a false or other unjust means, if it was revoked by a lawsuit for objection, the holder of the check can not be said to have caused any damage to the holder of the check, unless there are special circumstances.

In the instant case, while the revocation judgment on the instant nullification judgment was not confirmed, the instant nullification judgment constitutes Article 490(2)7 of the Civil Procedure Act, and as seen earlier, revoked the judgment and accepted the Plaintiff’s claim for the check money against the Defendant Union and the Defendant 2 on the condition that the revocation judgment becomes final and conclusive. Therefore, in light of this, it cannot be deemed that the Plaintiff suffered any loss due to the instant nullification judgment, and there is no other evidence to acknowledge it otherwise.

The plaintiff's claim for damages against the defendant 3 is without merit.

5. Conclusion

Therefore, the judgment of this case is revoked and the application for the judgment of this case is dismissed, and the defendant union and the defendant 2 are jointly bound to pay the plaintiff the legal interest of 80 million won and 6% per annum as prescribed in the Check Act from June 1, 2009 to the date of the presentation of the payment of the check of this case (the obligation to pay the check of this case only when the judgment of cancellation becomes final and conclusive, the obligation to pay the check of this case shall not apply the interest rate prescribed in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc.). Thus, the plaintiff's main claim against the defendant union and the defendant 2 shall be accepted within the above scope of recognition, and the provisional execution is not declared, and the remainder of the claim shall be dismissed as it is without merit. However, since the part of the judgment of the court of first instance is different from the judgment of the court of first instance, the remaining part of the judgment of the court of first instance as to the defendant's appeal of this case shall be dismissed as it is without merit.

[Attachment]

Judges highest (Presiding Judge) Lee Jae-ho Kim