[1] Legal relations where a check is delivered for the performance of existing obligations

[2] The contents of the defenses by the obligor who delivered the check to the obligee in the relationship of the cause for the performance of existing obligations to the obligee in relation to the check

[3] In a case where a creditor who received a check for the payment of an existing obligation transfers only the underlying claim to a third party by separating it from the check, whether the obligor may refuse to perform only the underlying obligation not returned to the assignee (affirmative)

[4] In a case where a creditor who received a check for the payment of an existing obligation transfers only the underlying claim to a third party separately from the check and pays the check money after the notice of transfer, whether the obligor can assert the effect of extinction of an obligation under the underlying relationship to the assignee (affirmative)

[1] Where an obligor delivers a check to the obligee regarding the performance of existing obligations, barring any other special circumstance, it shall be presumed that it has been given for payment "for the purpose of payment", and therefore, it shall be deemed that the existing obligation is not extinguished and it exists concurrently with the obligation on the check.

[2] As long as the existing cause obligation and the obligation on a check exist together, the obligor may refuse a claim for the payment of the existing claim without the return of a check against the obligee in the underlying relationship in order to avoid the risk of double payment until the obligor is exempted from the obligation on the check. Meanwhile, in the event the obligor is exempted from the obligation on the check, such as the payment of the subsequent check, etc., the obligor can assert the extinction of the obligation on the ground that the obligee in the underlying relationship was exempted from the obligation on the check.

[3] In a case where the obligor issued a check to the obligee in order to pay the existing obligation, and the obligee transfers only the existing cause claim to a third party separately from the check, the obligor is entitled to exercise the right of defense as to the assignee of the existing cause claim since the obligee had a right of defense against the transferor prior to the receipt of the notice of assignment of the obligation that did not return the check.

[4] In a case where a creditor who received a check for the payment of an existing obligation transfers only the existing cause claim to a third party separately from the check, the debtor's delivery of the check for the payment of the existing obligation should be deemed to have been expected to terminate the existing obligation if the debtor is exempted from the obligation to repay the check, such as the payment of the check amount, etc. However, the circumstances that the debtor planned to extinguish the existing cause obligation with the payment of the check amount had already existed prior to the notification of the assignment of the obligation. Thus, even if the payment of the check was made after the notification of the assignment of the obligation, it cannot be deemed that there was a new cause after the notification of the assignment of the obligation. Accordingly, the debtor can assert the termination of the existing obligation on the grounds that the check delivered for the payment of the existing cause claim was settled after the notification of the transfer.

[1] Article 460 of the Civil Code, Article 12 of the Check Act / [2] Articles 475 and 536 of the Civil Code, Article 12 of the Check Act / [3] Articles 450, 451(2), and 536 of the Civil Code / [4] Articles 450 and 451(2) of the Civil Code, Article 12 of the Check Act

[1] [2] Supreme Court Decision 75Da649 delivered on April 13, 1976, Supreme Court Decision 93Da11203, 11210 delivered on November 9, 1993 (Gong1993Sang, 65) / [1] Supreme Court Decision 89Da1322 delivered on May 22, 1990 (Gong190, 1343), Supreme Court Decision 97Da126, 133 delivered on March 28, 197 (Gong197Sang, 121) / [3] Supreme Court Decision 88Da7733 delivered on May 9, 198 (Gong1989, 897) / [197] Supreme Court Decision 96Da13630 delivered on March 23, 196

Plaintiff (Attorney Kwon Sang-hoon et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Im-soo, Counsel for defendant-appellant)

Daegu District Court Decision 2002Na6126 delivered on January 29, 2003

The judgment of the court below is reversed, and the case is remanded to Daegu District Court Panel Division.

We examine the grounds of appeal.

1. The judgment of the court below

According to the reasoning of the judgment below, on April 10, 200, the plaintiff acquired the claim amounting to 17,802,180 won from the non-party 1 to the defendant, and notified the defendant of the assignment of the claim on May 22, 200 with the delegation of the non-party 1, and the defendant received the above notification around that time. The court below determined that the defendant is liable to pay the above transfer money to the plaintiff who is the assignee. On the other hand, the court below rejected the defendant's assertion that the non-party 1 was liable to pay the above transfer money from the non-party 1 to April 10 of the same year, and it is hard to find that the defendant paid the above transfer money to the non-party 1 with cash or check or that the non-party 2, who is the father of the defendant, paid the above transfer money to the non-party 1 to the non-party 1 by deducting the above transfer money to the non-party 1 to the non-party 1 as an advance payment.

2. The judgment of this Court

A. Regarding delegation of assignment of claims

Examining the judgment of the court below in comparison with the records, we affirm the above fact-finding and judgment of the court below that the plaintiff notified the defendant of the assignment of claims with the delegation by the non-party 1, and there is no violation of law of misunderstanding of facts due to violation of the rules

B. As to the credibility of the evidence consistent with the Defendant’s argument regarding the extinguishment of the goods price liability

However, in rejecting the defendant's assertion that the defendant's obligation to pay the goods of this case against the non-party 1 was entirely extinguished by the method of repayment, etc., the court below's decision that rejected all of the defendant's non-party 1's non-party 1's credibility of the evidence

According to the records, on March 3, 200 and April 3, 200, the prior notice of the assignment of the claim of this case to Nonparty 1, the defendant delivered to Nonparty 1 an amount equivalent to KRW 18,90,000 (hereinafter referred to as "the check of this case") for four copies of household checks issued by Nonparty 2 as the repayment of the goods payment obligation to Nonparty 1, and upon agreement between the defendant, Nonparty 2, Nonparty 1 and the defendant, the defendant argued that the advance payment on the goods payment claim against the defendant of Nonparty 1 (hereinafter referred to as "the advance payment of this case") was made in lieu of the payment of KRW 3 million among other goods payment claims against Nonparty 2, Nonparty 1, and the witness Nos. 1, 2, 4-1, 4-1, 5-1, 1-2, 1-1, 1-2, 1-2, 1-1-2, 1-1-2, and 2-1-1-2 of the witness evidence No.

① Examining the above documentary evidence’s form, method of writing, and contents of testimony as to the non-party 1’s transactions, as indicated in the records, it is difficult to conclude that all of the evidence were fabricated or false. ② Even if the Plaintiff’s statement on the non-party 1’s transaction statement on the non-party 1’s invoice (Evidence 5-1) was written on the non-party 2, it is difficult to view that the Plaintiff’s remaining balance was written on the non-party 1’s non-party 1’s non-party 2’s non-party 2’s non-party 1’s non-party 2’s non-party 2’s non-party 2’s non-party 1’s non-party 1’s non-party 2’s non-party 1’s non-party 2’s non-party 1’s non-party 2’s non-party 2’s non-party 1’s non-party 1’s non-party 2’s non-party 2’s non-party 2’s non-party 3’s non-party 2’s claim.

Therefore, in light of the overall circumstances revealed in the record, the above transaction book is judged to be defective that the defendant did not fully reflect the additional details of transactions between the defendant and the non-party 1, which can be recognized by the evidence that the defendant was inside, and since the value of the above evidence is not deemed to be less than that of the above transaction book, the defendant's credibility of these evidence shall not be denied with only the entry in the above transaction book.

Therefore, as seen above, if the defendant can recognize the credibility of the evidence, the defendant shall comprehensively consider these evidences, and the defendant shall settle the advance payment of this case 3 million won to non-party 1 prior to the arrival of the notification of the assignment of the claim of this case, and there is room to acknowledge the fact that each of the checks of this case was settled after the notification of the assignment of the claim of this case by issuing the check issued by non-party 2.

C. As to whether the Defendant’s obligation to pay the instant goods is extinguished

(1) As to the extinguishment of the obligation related to the settlement of the instant advance payment

If it is possible to recognize the settlement of the advance payment of this case KRW 3 million, as alleged by the defendant, before the arrival of the notice of assignment of claims of this case, the defendant's debt equivalent to the same amount among the goods price obligations of this case against the non-party 1 has already been extinguished, and therefore, the defendant may oppose the plaintiff, the assignee of the claim of this case, with the extinguishment of the part of the debt

(2) As to the extinguishment of the obligation related to the issuance of the instant check

In case where the obligor delivers a check to the obligee with respect to the performance of the existing obligation, it shall be presumed that the existing obligation exists with respect to the check without extinguishing the existing obligation (see Supreme Court Decisions 75Da649, Apr. 13, 1976; 89Da1322, May 22, 1990; 93Da11203, Nov. 9, 193; 97Da126, 133, Mar. 28, 1997; 97Da126, and 133, etc.). Thus, the obligor cannot avoid the existing obligation to pay the check until the obligor is exempted from the obligation to pay the check. Thus, the obligor cannot be viewed as the obligor's refusal to claim the payment of the existing obligation under the check after the lapse of the existing obligation under the check.

Meanwhile, in a case where the obligor delivers a check to the obligee for the payment of the existing obligation, and the obligee transfers only the existing claim to a third party, as seen above, the obligor is entitled to exercise the right of defense against the assignee since the obligee had a right of defense against the assignee of the existing claim to refuse the performance of the existing claim without the refund of the check prior to the receipt of the notification of the assignment of the claim (see Supreme Court Decisions 88Da7733, May 9, 1989; 96Da1153, March 22, 1996, etc.). Furthermore, the obligor’s delivery of the check for the payment of the existing obligation should be deemed to have agreed that if the obligor is exempted from the obligation of repayment on the check, such as the payment of the check amount, the obligor would be deemed to have agreed to extinguish the existing obligation if the obligor becomes exempt from the obligation of repayment on the check, and as such, the obligation of the existing cause is expected to be extinguished after the notification of the transfer of the previous obligation after the delivery of the check.

As to the instant check, unless there are other special circumstances, it shall be presumed that the Defendant issued the check for payment "for the purpose of payment". Thus, it shall not be deemed that the Defendant extinguished its obligation for the payment of its own goods immediately by issuing the check, and the Defendant's mere fact that the Defendant entered the delivery of the check in his transaction account book, or that the payment of the goods shall be deemed to have been deposited by the transferee of the check, shall not be deemed to have been followed. However, as seen above, as long as the check was issued for the payment before the time of the assignment of the instant check, it shall be deemed that the check was paid to a third party after each payment was made after the time of the assignment of the instant check, the Defendant may assert the effect of extinguishing its obligation for the payment of its goods under the cause relationship against the Plaintiff, the assignee.

(d) Conclusion

Therefore, as long as the credibility of the above evidence submitted by the defendant can be recognized, the defendant's argument about the extinguishment of obligation should be accepted. However, without any reasonable reason, the above evidence is rejected, and the judgment of the court below which rejected the defendant's argument is erroneous in the misapprehension of facts against the rules of evidence that affected the conclusion of the judgment, or in the misapprehension of legal principles. Thus, the ground of appeal pointing

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)