(a) Where an obligor on a bill asserts that his name and seal has been forged, the burden of proof as to whether the signature and seal has been authentic;

(b) Where the presumption of the authenticity of a document which has recognized a seal imprint is broken;

A. [Majority Opinion] In a case where a person stated in a bill as the obligor asserts that his name and seal is forged, the holder of the bill claiming the performance of the obligation on the bill must prove that the signature and seal of the person in question is authentic.

[Separate Opinion] If an endorsement of a bill is formally continuous, the holder is presumed to be the legitimate holder, so if the endorsement is forged, the claimant must prove the forgery.

B. If the Defendant acknowledges that the stamp image affixed on the Defendant’s name in the column for endorsement of the Defendant’s name is based on the Defendant’s seal, the part of endorsement is presumed true, but if it is clearly indicated that the stamp image is affixed and sealed by a person other than the Defendant who is the title holder, such presumption is broken. In such a case, it is proven that the part of endorsement is authentic even if it is proved that the Plaintiff, who is the title holder, was authorized to affix the seal by the Defendant, who is the title holder, who was the Plaintiff, who was produced as evidence

(a) Article 16(1) of the Bills of Exchange and Promissory Notes Act;

A. Supreme Court Decision 71Da570 decided May 24, 197 (No. 1989, 811) (No. 1989, 8111) (No. 1990, 1137) Decided July 7, 1987 (No. 1987, 1296). Supreme Court Decision 86Meu915 decided September 23, 1986 (Gong1993, 1449) (No. 1989, 1989, 811), Supreme Court Decision 89Meu21569 decided Apr. 24, 190

Plaintiff

The highest lawyer of the defendant-appellant

Busan District Court Decision 92Na9187 delivered on December 11, 1992

The judgment of the court below is reversed.

The case shall be remanded to Busan District Court Panel Division.

The defendant's attorney's grounds of appeal are examined.

1. The court below held that the non-party 1's testimony, consistent with the defendant's argument, is presumed to be true, on the premise that the non-party 1's testimony of the non-party 1, who is the witness of the court of first instance, is not trusted and there is no other evidence to prove it. The court below held that the non-party 2 was liable to pay to the plaintiff the non-party 4, the non-party 4, the non-party 3's assertion that the non-party 3 was not guilty, because the non-party 4, the non-party 4, the non-party 4, the non-party 3 was not guilty, because the non-party 1 was not aware of the fact that the non-party 2 had acquired the above bill at par value 20,000,000 won and the non-party 2 was not aware of the fact that the non-party 3 was not liable for the non-party 4, the non-party 4, as alleged in the above assertion and the non-party 3's assertion.

2. According to the general principles on the allocation of burden of proof in civil procedure, a person who asserts rights must prove the fact of the occurrence of rights. Thus, even if the holder of a bill exercises his/her right on a bill against the debtor, it shall be deemed that the holder of the bill bears the burden of proving that the debtor has performed his/her act on the bill. Article 16(1) of the Bills of Exchange and Promissory Notes Act, which provides for the validity of endorsement, provides for the presumption of attribution of rights under the premise that the right on the bill has been lawfully created, does not stipulate the presumption of the occurrence of rights itself. Thus, the phrase "legal presumption" under the above Article 16(1) of the Bills of Exchange and Promissory Notes, excluding those who have forged the bill, is presumed to be a holder of rights entitled to exercise his/her right on the bill, and further, it shall not be presumed that the bill has occurred even if the person asserts that his/her name and seal has been forged.

Of the previous opinions expressed by a member, the opinion interpreted that a person who asserts that his/her endorsement has been forged shall prove the forgery and the fact that the holder has failed to acquire it in good faith, may be exempted from liability as an endorser (see, e.g., Supreme Court Decision 71Da570, May 24, 197; Supreme Court Decision 86Meu2154, Jul. 7, 1987).

3. Nevertheless, the court below held that the defendant's assertion that the endorsement of the name of the defendant was forged and thus the defendant is not responsible as an endorser, even though it is erroneous in the misapprehension of the legal principle of the burden of proof as to the forgery of the endorsement, and the endorsement under the name of the other defendant was forged, the defendant, who asserts such fact and the plaintiff, who is the holder of the bill, should prove the acquisition of the bill of this case due to bad faith or gross negligence, and there is no proof that the plaintiff acquired the bill of this case by bad faith or gross negligence, and therefore, the above argument of the defendant is without merit. In addition, if it is judged that the court below's determination that the 1, 2 (the Promissory Notes of this case) of the evidence No. 1-2 (the Promissory Notes of this case) is correct, the court below's

However, since the defendant acknowledges that the seal imprinted in the name of the defendant is affixed to the seal of the defendant, it is presumed that the part of endorsement is true. However, if it is apparent that the seal imprinted by a person other than the defendant who is the name of the defendant, the above presumption is broken. In such a case, it is necessary to prove that the part of endorsement is true (see, e.g., Supreme Court Decision 88Meu6815, Apr. 25, 1989; 89Meu21569, Apr. 24, 1990; 89Meu21569, etc.). The court below found that the above part of endorsement was not the defendant's signature and seal affixed in the name of the defendant but the above non-party 1's signature and seal was affixed to the non-party 1, who is the name of the plaintiff, as evidence, and it cannot be found that the court below erred in the misapprehension of legal principles as to the defendant's signature and seal affixed to the non-party 1.

4. In addition, considering the column for endorsement in the defendant's name No. 1-2 as well as the fact that there is no other evidence to acknowledge this, the court below's decision that exempted the preparation of the certificate of non-payment and recognized the fact that the bill was endorsed and transferred shall be deemed to be an unlawful violation of the rules of evidence, and since it is evident that such illegality has affected the conclusion of the judgment, there is a reason to point out this issue.

5. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. Except for a separate opinion by Justice Park Jong-dong, Justice Kim Sang-won, and Justice Kim Jong-soo, the decision is delivered with the assent of all participating Justices.

Concurring Opinion by Justice Park Jong-dong, Justice Kim Sang-won, and Justice Kim Jong-soo is as follows.

1. With regard to the purport of Article 16(1) of the Bills of Exchange and Promissory Notes Act, the majority opinion is merely presumed to be a holder entitled to exercise a right on a bill against an obligor other than the person who has forged the bill, and it does not presume the occurrence of the obligation on a bill even to the person who asserts that his name and seal has been forged. Therefore, if the person stated in the bill as the obligor claims that his name and seal have been forged, it is understood that the holder of the bill claiming the performance of the obligation on the bill bears the burden of proving that his name and seal has been forged.

However, without reasonable grounds, we cannot agree with this view because it is against the purpose of Article 16 (1) of the Bill of Exchange and Promissory Notes Act, which is to guarantee circulation of the bill in accordance with the external facts of continuous endorsement by limiting and interpreting Article 16 (1) of the Bill of Exchange and Promissory Notes Act.

In other words, Article 16 (1) of the Bills of Exchange and Promissory Notes Act only stipulates that the possessor of a bill establishes his right by the series of endorsementss shall be presumed to be the lawful holder. Thus, it shall be interpreted to be the right holder entitled to exercise the right to claim under the Bills of Exchange and Promissory Notes Act as stated in the majority opinion.

In addition, the presumption of legitimate right holder is generally deemed to include the presumption on the premise of the occurrence of the obligation. Since the true meaning of the presumption is the presumption, it can be interpreted that the presumption includes the presumption of the occurrence of the obligation of the bill on the premise of the occurrence of the obligation of the bill obligor. This interpretation also conforms to the purport of the provision of Article 16 (1) of the Bills of Exchange and Promissory Notes Act aiming to guarantee the circulation of the bill on the basis of the external fact that the series of endorsement is continuous.

According to the general principles on the allocation of burden of proof in civil procedure, there may not be a theory on the fact that a person who claims a right should assert and prove the fact of the existence of a right. However, in the distribution of burden of proof, the request for fairness and policy considerations together act as the guiding principle, so the legislators can easily exercise the right as much as possible, or seek prompt and clear settlement of disputes, etc., for example, the change of the burden of proof is often found with regard to the fact of the existence of a right. It falls under these categories by imposing on the defendant the burden of proof of reasons for exemption (Article 755, 756, 758, and 759 of the Civil Act).

From this point of view, Article 16(1) of the Bills of Exchange and Promissory Notes Act provides that the possessor of a bill shall be presumed to be the lawful holder if he proves his rights by the series of endorsementss, and that the provisions of Article 16(1) of the Bills of Exchange and Promissory Notes Act provides that the possessor shall be deemed to have provided for the conversion of the burden of proof to the fact that the holder has the rights to the bill, i.e., the lawful acquisition of rights of the holder of the bill and the occurrence of the obligation that is the premise thereof, based on the external fact that the series of possession and series of endorsements is continuous, in order to ensure the circulation of the bill by allowing the series of endorsements to easily exercise his rights on the bill.

2. As to such interpretation, it can be pointed out that it is too harsh to bear the burden of proof as to the forgery of the name and seal of the person who did not perform the act of a bill at all. Therefore, this paper briefly examines this point.

The forgery of a bill can be divided into the case of forging the seal itself in accordance with the form of the above Article and the case of stealing the seal used by the person who forged the bill.

However, in cases where the seal used by the counterfeited person is stolen, i.e., where the seal affixed on the face of a bill was removed by the seal affixed by the counterfeited person, barring any special circumstance, the establishment of the seal affixed thereto shall be presumed to have been genuine based on his/her will. On the other hand, when the authenticity of the seal is presumed, the authenticity of the entire document is presumed to have been duly formed pursuant to Article 329 of the Civil Procedure Act (see Supreme Court Decision 85Meu1009, Feb. 11, 1986; Supreme Court Decision 86Meu2575, Jul. 7, 1987). In such cases, the person who asserts that the seal affixed was stolen shall prove the stolen fact and the probative value of evidence proving it is not sufficient to establish it (see Supreme Court Decision 87Meu707, Dec. 22, 1987). In such a case, it seems that there is no special difference between the Concurring Opinion and the substance.

Therefore, the majority opinion and the separate opinion of the majority opinion are different in substance when the seal per se is forged, and in such a case, the degree of difficulty in proving the person to whom the bill was counterfeited and the person to whom the bill was counterfeited, that is, the person to whom the seal is used, the true bill signed and sealed by him, and the seal impression affixed to the bank, can prove the fact of forgery relatively easily because it belongs to the scope of his own activity, while the holder of the bill can prove the fact of forgery relatively easily. In light of the fact that there are many cases where it is impossible to prove the fact of forgery because it was impossible for him to obtain the above supporting materials, considering the characteristics of the bill, which is the guarantee of circulation, it is not considered that the presumption of the authenticity of the name and seal of the bill debtor based on the external fact, such as possession

Inasmuch as the endorsement of a bill is formally continuous due to the above reasons, the holder is presumed to be the legitimate holder, so even if the endorsement is forged, the party asserting it should prove the forgery; I cannot agree with the majority opinion that attempts to change the opinion of the Supreme Court Decision 86Meu2154 Decided July 7, 1987, and that each of the above judgments should be maintained.

However, in the above judgment, it is interpreted that the person who asserts the forgery of an endorsement shall prove the forgery and the fact that the holder did not bona fide acquisition, and that even in the case where the forged person proves the forgery, such opinion should be changed if the above judgment purports to the same effect. The defense of the bill in the above judgment can be set up against all the persons who have the right to demand the payment of the bill, regardless of the fact that there is a problem such as user liability and expression liability, if it is proved that the counterfeited person is exempted from the responsibility of the bill, and that there is no room for the bona fide acquisition of the bill by the holder (the above 86∑2154 judgment is not a matter of question, and even if the counterfeited person proves the forgery, it is not a matter of whether the holder has bona fide acquisition by the holder, but a general fact of the fact that the holder has not bona fide acquisition by the bill and the burden of proof is not a matter of proof as to the fact that the forged person has not bona fide acquisition by the holder).

3. In the instant case, since the endorsement of the Promissory Notes in this case is formally continuous, the Plaintiff, the holder of the Promissory Notes, is presumed to be a legitimate holder and the part of endorsement in the name of the Defendant is presumed to be true. However, if it is found that the stamp image is affixed and sealed by a person other than the Defendant, the Plaintiff, the holder of the Promissory Notes, the holder of the Promissory Notes, needs to prove the fact that the Plaintiff, the holder of the Promissory Notes, was delegated with the authority to affix the seal. According to the records, according to the records, Nonparty 1, the Plaintiff itself, not the Defendant’s seal affixed on the box of endorsement in the name of the Defendant, and Nonparty 1, the seal stamp image in the name of the Defendant, was recognized by the Plaintiff, and there is no evidence to prove the fact that Nonparty 1 was authorized to affix the endorsement in the name of the Defendant on behalf of the Defendant. Thus, the court below presumed that the part of endorsement in the name of the Defendant was true and correct, and it did not affect the conclusion of the judgment.

In addition, with respect to the defendant's assertion that an endorsement under the name of the defendant was forged and thus cannot respond to the plaintiff's claim, the court below rejected the defendant's assertion on the ground that the claimant, even if an endorsement under the name of the defendant was forged, shall prove such facts and the fact that the holder acquired the bill of this case intentionally or by gross negligence. However, the court below rejected the defendant's assertion on the ground that there was no proof as to the fact that the plaintiff acquired the bill of this case with the knowledge of the circumstances as alleged by the defendant or was grossly negligent in not knowing such facts. In so doing, the court below did not err by misapprehending the legal principles on the nature of the defense for

Justices Kim Yong-ju (Presiding Justice)