Nullification Judgment and Right of Holder to Claim Redemption of Benefits

As a result of the nullification judgment, the check shall lose its effect as a check, and therefore the holder of the check shall not exercise his right by presenting the check, and there is no right to demand reimbursement of benefit under the premise that the check is a lawful holder.

Article 468 of the Civil Procedure Act, Article 63 of the Check Act

67Da541,542 delivered on June 13, 1967 (Supreme Court Decision 446 delivered on June 13, 1967, Supreme Court Decision 15Du20 delivered on June 15, 196, Decision 468(4)103 of the Civil Procedure Act)

Plaintiff

Seoul Bank, Inc.

An intervenor;

Seoul Central District Court (64A10805) in the first instance trial

Supreme Court Decision 67Da541, 542 Decided June 13, 1967

(1) The plaintiff's winning part of the original judgment and the part against the defendant of the party intervenor shall be revoked.

(2) The defendant shall pay 200,000 won to the party intervenor.

(3) The Plaintiff’s claim and the Intervenor’s appeal against the Plaintiff are all dismissed.

(4) Of the total costs of the lawsuit, the costs of the lawsuit incurred between the plaintiff and the defendant shall be borne by the plaintiff, while five minutes of the costs of the lawsuit incurred by the participation shall be borne by the plaintiff, and the remainder of the party intervenor shall be borne by the defendant.

(5) The above Paragraph (2) can be provisionally executed.

The plaintiff shall pay to the plaintiff 20 million won with an annual interest rate of 6 percent from November 26, 1964 to the date of full payment.

The judgment that the costs of lawsuit shall be borne by the defendant and the declaration of provisional execution shall be delivered by the plaintiff to the intervenor of the party concerned.

The defendant shall pay 200,000 won to the intervenors of the parties.

The court costs are assessed against the plaintiff and the defendant and the declaration of provisional execution.

The defendant shall revoke the part against the defendant in the original judgment.

The plaintiff's claim is dismissed.

The costs of lawsuit shall be borne by the plaintiff in both the first and second instances, and the party intervenor revoked the original judgment and sought a declaration of provisional execution, such as the purport of the claim.

The fact that the defendant received KRW 200,000 from the intervenor on November 13, 1964 (hereinafter referred to as the " intervenor") and delivered to the intervenor by issuing one cashier's checks of KRW 200,000 at the face value, such as entry in the attached list, is without dispute between the parties.

(1) We examine the plaintiff's request.

On November 23, 1964, the plaintiff asserted that the plaintiff issued and exchanged 200,000 won in cash, which the non-party 2 exchanged to the above bank with the non-party 1's recommendation at the government branch of the non-party 1 for the bank for the reasons that the check was lost, and as such, the check was refused to pay for the reason that it was the loss of the check, it cannot be claimed as a claim for reimbursement of profits against the defendant, and the non-party 2 was able to exercise the right to claim reimbursement of profits against the defendant. The plaintiff transferred the claim to the plaintiff on February 26, 1965 and notified the defendant thereof on March 3, 196.

Therefore, if both the contents of evidence No. 1 and the testimony of Non-Party 1 and 2 without dispute over the establishment of this case are met, it may be acknowledged as identical to the plaintiff's assertion. However, according to the contents of evidence No. 3 without dispute over the establishment of this case, the check was issued by the intervenor by paying 200,000 won from the defendant bank on November 13, 1964, it was stolen on the 22th of the same month by the non-party 3, and the plaintiff paid 200,000 won to the non-party 2 on the 23th of the same month, and the above check was possessed. The intervenor filed a report on the loss on November 23, 1964, and applied for a public summons with the Seoul Central District Court on March 30, 1965, and it cannot be acknowledged that the plaintiff's right to claim reimbursement of the check cannot be exercised on the premise that the plaintiff's right to claim reimbursement of the check was invalid.

(2) We examine the Intervenor’s claims.

In light of all the facts without dispute, the plaintiff's claims, and all the evidence mentioned above, the intervenor may exercise his right as the holder of the check because they received a judgment of nullification as shown in the previous statement. Thus, when examining the claim against the defendant, the intervenor cannot make a claim for reimbursement of the check due to the lapse of the period for presentation of the check, and thus there is a claim for reimbursement of benefit against the defendant. As to the scope of the claim, the intervenor paid a sum of KRW 200,000 to the defendant and issued the check, such as the previous recognition, so the defendant acquired profit equivalent to the above amount due to the exemption of payment of the check. Thus, the defendant is obligated to pay the above amount to the intervenor.

Then, according to Gap evidence No. 1 without dispute over the plaintiff's claim against the plaintiff, the plaintiff's possession of this case can be recognized, but the plaintiff's possession of this case's check can be acknowledged as the fact that the plaintiff believed that the non-party 2 was the legitimate holder of the check and acquired this case's check, and even if the plaintiff acquired this case's check in bad faith or gross negligence, there is no evidence to support that the plaintiff acquired this case's check due to the plaintiff's bad faith or gross negligence.

In the same way, the part of the intervenor's claim against the defendant for reimbursement of 200,000 won against the defendant among the plaintiff's claim is justified, and it shall be accepted by the intervenor's claim against the plaintiff and the plaintiff's claim against the defendant against the defendant. Under other purport, the original judgment which accepted the plaintiff's claim against the defendant and dismissed the plaintiff's claim against the defendant against the defendant is unfair, and since the defendant's appeal and the intervenor's appeal against the defendant are reasonable, the part of the plaintiff's winning judgment against the defendant and the part against the defendant against the defendant against the plaintiff among the original judgment shall be revoked, and it is so decided as per Disposition in accordance with Articles 386, 96, 92, 89, and 199 of the Civil Procedure Act.

[Attachment List omitted]

Judges Kim Yong-chul (Presiding Justice)