In a case where a check issued to secure the performance of an obligation is transferred from a creditor to a third party, but the check is not fixed within the fixed time and the rights under the Check Act are extinguished, whether a claim for reimbursement of benefit under the Check Act against the third party is made

If an obligee transfers a check issued in order to secure the fulfillment of an obligation to a third party, the obligor may refuse to perform the obligation based on the causal relationship until the check is returned. In such a case, even if the check is not presented within the period for presentment, and the right under the Check Act has ceased to exist, the third party is not entitled to claim reimbursement of benefit under the Check Act against the obligor

Article 466 of the Civil Code, Article 63 of the Check Act

Analvatization

Kim Young-line

Seoul High Court Decision 64Na51 delivered on June 23, 1964, Seoul High Court Decision 64Na51 delivered on June 23, 1964

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

We examine the Plaintiff’s agent’s ground of appeal for self-help and awareness.

(1) Regarding the first ground of appeal, even if a check is issued in order to secure the fulfillment of a loan for consumption, even if the creditor transfers the check to a third party, it cannot be deemed that the claim under the loan for consumption is extinguished. However, if the creditor claims to return the check to a third party and to perform a claim under the loan for consumption without any guidance, the debtor may refuse to perform the obligation under the underlying relationship until the check is returned to secure the performance of the check (see Supreme Court Decision 4294DaDa1190 delivered on April 12, 1964). In this case, according to the facts established in the judgment of the court below, since the check issued by the defendant is not fixed within a fixed time, it is evident that the right as a check is extinguished. Thus, even if the non-party, the creditor, who is the non-party Kim Jae-sung, received a claim for the performance of a loan for consumption, it cannot be viewed that the defendant can not be viewed as having affected the plaintiff's right to benefit under the loan for consumption, which is the drawer of the check.

The paper is without merit.

(2) Regarding the second point, the argument that the creditor has already transferred the check issued for securing performance as seen above to a third party, and that the creditor's claim for a loan for consumption, which is a remedy method under the Civil Act, is not extinguished, and that the creditor's claim for a reimbursement of benefit against the issuer of the check, which is a third party, should be accepted even in the case where there is a remedy method based on the causal relation, is without merit.

Therefore, this appeal is dismissed. The costs of appeal are assessed against the losing party.

This decision is consistent with the opinions of the involved judges.

The judge of the Supreme Court (Presiding Judge) of the Republic of Korea shall have the authority to transfer a red net holiday.