[1] Whether the provisional disposition prohibiting payment of a check affects a third party purchaser (negative)

[2] Whether the provisional injunction against payment of a check may bring an action against the garnishee, the drawer of the check, even if the provisional injunction against payment of the check is rendered (affirmative)

[3] Whether the amount equivalent to the check price held by the drawer is subject to a claim for reimbursement of benefit (affirmative)

[1] Article 22 of the Check Act, Article 300 of the Civil Execution Act / [2] Article 22 of the Check Act, Article 248 of the Civil Procedure Act, Article 300 of the Civil Execution Act / [3] Article 63 of the Check Act

[Judgment of the court below]

Cho Heung Bank (mutual name after the merger: New Bank after the merger)

Korea

Seoul Central District Court Decision 2005Na13782 Decided December 8, 2005

The defendant assistant intervenor's appeal is dismissed. The costs of appeal are assessed against the defendant assistant intervenor.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In light of the principle of the Check Act, which is the cutting of the distribution securities and human defenses of the check, the prohibition of payment to the third party purchaser who is the issuer of the check shall not be permitted as a provisional disposition because it unfairly limits the rights of the holder of the check until the third party purchaser acquires the check from the debtor of the provisional disposition and presents it. Thus, the provisional disposition ordering the third party purchaser who is the issuer of the check to prohibit payment of the check shall not be effective even though the third party is not limited to the debtor of the provisional disposition. Further, even if the provisional disposition ordering the third party to prohibit payment of the check, the effect of the provisional disposition shall not extend to the third party purchaser. In addition, since the provisional disposition prohibits the third party purchaser from paying the check in reality, the third party purchaser who is the issuer of the check may file a lawsuit against the third party, and the court shall not reject it on the ground that the provisional disposition has been made.

In the above purport, the court below is just in holding that the defendant cannot refuse the payment of each of the instant checks against the plaintiff on the ground that the provisional disposition order in this case was rendered, and there is no error in the misapprehension of legal principles as to

2. Regarding ground of appeal No. 2

The benefit in the right to claim reimbursement of benefit from the extinction of the right to the cashier's check is derived from the money relationship between the client of the check and the client of the check. Therefore, as long as the issuer holds the check payment, it is presumed that the issuer has the benefit equivalent to the check payment.

The court below is just in rejecting the Defendant’s assertion that there was no benefit from the Defendant’s exemption from the payment of each of the instant checks to the Defendant’s Intervenor, and there was no evidence to prove that the Defendant had a duty to return each of the instant checks to the Defendant’s Intervenor, and there was no error in the misapprehension of the legal principle as to the Plaintiff’s exemption from the payment of each of the instant checks. In so doing, the court below did not err by misapprehending the legal principles as to the Plaintiff’s exemption from the payment of each of the instant checks, and by misapprehending the legal principles as to the Plaintiff’s exemption from the payment of each of the instant checks.

3. As to the third ground for appeal

The defendant assistant intervenor did not state the grounds for violation of the rules of evidence against the rules of evidence in the court below's fact-finding, and the grounds for violation of the rules of evidence are merely grounds for the fact-finding which belongs to the exclusive jurisdiction of the fact-finding court, and it is difficult to regard the grounds for violation of the rules of evidence as legitimate grounds for appeal. In light of the records, the court below rejected the defendant assistant intervenor's assertion that the plaintiff's acquisition of each of the checks of this case was prohibited from exercising the right to claim reimbursement of benefits because it was caused in bad faith or gross negligence, or that the plaintiff's assertion that the agreement with the non-

4. Conclusion

Therefore, the defendant assistant intervenor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)