[1] In a case where a manager performs a bill of exchange beyond the power of representation, whether the scope of a third party, which cannot be set up against the restriction of his/her power of representation, includes the purchaser of the bill after the other party (affirmative)

[2] Judicial effects of loans that exceed the credit limit under Article 12 of the Mutual Savings and Finance Company Act (effective)

[1] The purport of Article 11(3) of the Commercial Act prohibiting a third party from claiming the restriction on the authority of a manager is to seek a prompt transaction by allowing the parties to the transaction to make a transaction with the knowledge and without investigating the scope of the manager’s right of representation. The bill is naturally a securities premised on the circulation of the entire amount. In particular, there is a need to limit the defense of the parties to the bill as much as possible due to internal reasons. In the case of a representative director who is unable to assert the restriction on the authority of the parties to the bill, like the manager, in the case of a representative director who acts in violation of Article 398 of the Commercial Act which requires a resolution of the board of directors, the transaction between the company and the director is also protected by the third party as well as the third party in good faith to whom the bill was transferred before the transfer of the bill. In light of the fact that the manager acts in violation of the restriction on the authority of a manager, it is reasonable to view that the bill includes not only the third party who cannot set up the restriction on the authority but also the person who acquired the bill after the bill.

[2] The purpose of Article 12 of the Mutual Savings and Finance Company Act, which prohibits in principle a loan exceeding a certain amount for the same person, is to place the loan business of the Mutual Savings and Finance Company, which is a profit-making corporation, in principle, in the autonomy of the society. However, since the public nature caused by its financial intermediary function, giving more opportunities to provide credit to a certain person by regulating excessive credit for a specific person, this provision shall be deemed to be the so-called regulation, and therefore, even if the loan was made in excess of such limit, the effects under private law shall not be affected.

[1] Article 11(3) of the Commercial Act / [2] Article 12 of the Mutual Saving and Financing Act

[2] Supreme Court Decision 87Da1458 delivered on December 22, 1987 (Gong198, 336) Supreme Court Decision 94Da21320 delivered on January 12, 1995 (Gong1995Sang, 873 delivered on August 23, 1996) 96Da18076 delivered on August 23, 1996 (Gong196Ha, 2847)

Seoul High Court Decision 201Na1484 decided May 1, 201

Dongsung Bank (Law Firm, Kim & Lee, Attorneys Kim In-tae et al., Counsel for the defendant-appellant)

Seoul District Court Decision 93Da206573 delivered on February 28, 1995

Supreme Court Decision 96Da36753 Delivered on August 26, 1997

1. The defendant's appeal and the provisional payment claim are dismissed, respectively.

2. The costs of appeal and the costs of filing an application for the return of provisional payments shall be borne by each defendant.

The defendant shall pay to the plaintiff the amount of KRW 3,00,000 and the amount of KRW 1,500,000 among them, from December 23, 1993; the remaining amount of KRW 1,50,000,000 from December 27, 1993 to the delivery date of the copy of each complaint of this case; and the amount of KRW 6% per annum from the next day to the full payment date (the plaintiff filed a claim for a promissory note and preliminary damages); and the amount of KRW 25% per annum from the next day to the full payment date (the plaintiff filed a claim for a promissory note and preliminary damages).

The part against the defendant in the original judgment is revoked. The judgment dismissing the plaintiff's claim corresponding to the above revoked part.

The defendant shall pay to the plaintiff the amount of 3,218,712,327 won and the amount of 5% per annum from March 3, 1995 to the rendering of the judgment of this case, and the amount of 25% per annum from the next day to the full payment day.

1. Basic facts

The following facts are either in dispute between the parties or in accordance with Gap evidence 1-2, Gap evidence 5-6, Gap evidence 8-2 through 10, Eul evidence 8-2, Eul evidence 2-2, and Eul evidence 2-2, and the witness testimony of the court below, mediation, non-party 5, 100, 100, 100, and the witness of the court of the first instance (excluding each part which is not trusted after the testimony of the patriarche, 100, 2000, 2-10, 2-10, 2-10, and 3). There is no counter-proof.

A. Circumstances of endorsement of this case

(1) Nonparty 1 is the manager and manager of the Defendant Samsung Dong-dong Branch, who is the center of the Defendant Bank’s Hague Branch.

(2) Nonparty 2 and Nonparty 3, her husband, introduced five customers who wish to purchase a bearer deposit certificate (so-called CD) to Nonparty 1, and the said five customers purchased a bearer deposit certificate equivalent to the sum of KRW 13,200,000 on November 1, 1993 and the following day from Samsung Dong branch, Nonparty 1 trusted the above Nonparty 2’s influence.

(3) On November 2, 1993, the above non-party 2 asked the above non-party 1 to deposit KRW 5,00,000,000 on the following day with Samsung Dong Branch as collateral, and the above non-party 1 promised to guarantee the payment of KRW 5,00,000 upon deposit with the above non-party 1 as collateral. However, on November 3, 1993, the above non-party 2 promised to guarantee the payment of KRW 5,00,000 upon deposit with the non-party 1 as collateral. But on November 3, 1993, the above non-party 2 did not make a deposit in the attached list Nos. 1 through 4 of the issuance of the non-party 4 Co. 4 Co. , Ltd. (hereinafter this case’s promissory Notes) and the attached list No. 5,6 (hereinafter this case’s separate promissory notes), but first, the above non-party 1 made the endorsement of the defendant bank at a different place.

(4) In order to guarantee the payment of the instant and separate promissory notes, Nonparty 1 trusted Nonparty 2 on the same day: (a) affixed the instant endorsement affixed the seals of the head of the Defendant Bank Samsung Dong-dong Branch Office (the head of the branch office of Sungdong-dong branch office) and the seals of the head of the branch office of the Defendant Bank, each of which is dismissed as “Seoul Samsung 1-dong, Samsung 1-2, 162-2,” “(the head of the branch office of Dong-dong Samsung 1),” “the head of Dong-dong, 1,” and “the head of Dong-dong branch office”.

B. The Plaintiff’s acquisition of promissory notes

(1) On the same day, Nonparty 2 instructed Nonparty 5 to take out loans from the Plaintiff as security, taking into account the instant and separate promissory notes endorsed by Nonparty 5.

(2) According to the above order, at around 13:00 on the same day, Nonparty 5 presented the above bill as the representative director of the Plaintiff’s office. Nonparty 5, the representative director, instructed Nonparty 1, the Plaintiff’s vice head, to confirm the fact of endorsement by telephone at around 13:05, and ordered the Plaintiff’s employees to take the loan procedures at the seat, namely, to verify the fact of endorsement by telephone. The employees in charge borrowed KRW 2,926,592,469, total face value of the Promissory Notes from around 14:27 to 14:51 on the same day by means of loans in which the bill of this case is a bill as security, and KRW 2,000,000,000,000, total face value of face value of KRW 1,950,68,631, and KRW 47,701,7561,610,000.

(3) In order to avoid restrictions under Article 12 of the Mutual Saving and Finance Company Act, which prohibits loans, etc. in excess of a certain amount to the same person in the above lending procedure, the Plaintiff: (a) had the name of the borrower as the above non-party 4 corporation, the non-party 6-10, the non-party 11 corporation, and the non-party 4 corporation, etc.; and (b) had the name of the second or third endorsement of the instant promissory notes and separate promissory notes as indicated in the separate note list, and (c) prepared all documents such as promissory notes, etc. as if the Plaintiff received the endorsement from the above 7 persons, as if they

(c) Payment refusal of promissory notes;

(1) On December 8, 1993, Nonparty 4 Co., Ltd., the issuer of the Promissory Notes of this case, was subject to a disposition of suspension of transaction from the pressure-fashion point of Seoul Trust Bank, the place of payment of the Promissory Notes of this case, and thus, the Plaintiff presented a presentation for payment at the above place of payment on December 17, 1993, the date of maturity, but rejected each payment.

(2) Meanwhile, Nonparty 2 did not deposit KRW 5,00,000,000 as promised, and the Plaintiff recovered loans related to separate promissory notes.

2. Judgment on the plaintiff's claim

According to the above facts, barring any special circumstance, Nonparty 1, who is the head of the branch office and the manager of the defendant Samsungdong branch office and the manager of the defendant Samsungdong branch office, has the authority to act on behalf of the defendant bank pursuant to Article 11 (1) of the Commercial Act in all judicial or extra-judicial acts pertaining to the business of the above Samsungdong branch office and the defendant's endorsement of the bill of this case on behalf of the defendant bank. Since the above non-party 1 is deemed to act on behalf of the defendant, the defendant is responsible as an endorser of the bill of this case. As long as the above non-party 4 corporation, who is the issuer of the bill of this case, was ordered to act on behalf of the defendant bank, and was ordered to act on behalf of the defendant bank, the plaintiff who is the holder of the bill of this case, can lawfully pay the bill of this case before the maturity and exercise the right of recourse against its endorser

3. Judgment on the defendant's assertion

A. The assertion and judgment of unauthorized Representation

(1) Restriction on control

The defendant asserts that the above non-party 1, the head of Samsung Dong branch office of the defendant bank's HH branch office, has no authority to make endorsement on behalf of the defendant bank on behalf of the defendant bank in accordance with the Bank of Korea's rules on credit operation and control under the regulations of the defendant bank (payment guarantee regulations and business share regulations). Thus, the above endorsement under the defendant's name for the purpose of payment guarantee against the bill of this case is an unauthorized act and has no effect on the defendant. Thus, the above non-party 1's endorsement for the purpose of payment guarantee against the bill of this case was above, and according to the evidence Nos. 5 through 8, the above non-party 1 stated above, it stated that the above non-party 1's endorsement for the purpose of payment guarantee against the bill of this case has no authority to do so. Article 6 (1) of the Regulations on Credit Management of the Bank of Korea, which was amended on April 1, 1993, provides that "the guarantee and acceptance bill of this case's insurance shall be limited to commercial bills".

(2) A bona fide third party

(A) The plaintiff and the defendant's assertion

In regard to this, the plaintiff did not know that the right of representation of the above non-party 1, who is the defendant's manager, was restricted as above at the time of acquiring the bill of this case, and the defendant did not oppose the plaintiff as a bona fide third party. Thus, the defendant asserted that the defendant should be held liable as an endorser of the bill of this case. On the other hand, the defendant did not limit the transaction to the other party to the direct transaction with the manager, which cannot be set up by limiting the right of representation of the manager, and the plaintiff who acquired the bill

(B) A third party and bill of exchange under Article 11(3) of the Commercial Act

According to Article 11(3) of the Commercial Act, the restriction on the manager's right to represent cannot be set up against a bona fide third party. In this case, where the manager performs acts of a bill beyond the limit of the right to represent, as in the case, the third party who cannot set up against the restriction on the right to represent him/her is the other party to the act of the bill of exchange or directly, or the other party to the act of the bill, and the latter party cannot set up the restriction on the rights of the manager to a third party as to whether it is included, and the latter party to the act of the bill of exchange or not, the purpose of commercial transaction is to ensure prompt transaction by allowing the parties to the transaction to make know and deal without investigating the scope of the right of representation of the manager. In this case, the bill of exchange is naturally a securities on the premise that it is distributed before the bill of exchange, and in order to do so, there is a need to set the limitation on the rights of the party to the bill of exchange or to set up the restriction on the rights of the former party to the bill.

Therefore, even if the Plaintiff is not the other party to whom the instant bill was directly endorsed and transferred by the Defendant’s manager, the Defendant cannot oppose the Plaintiff on the ground of the restriction, unless the Plaintiff knows that the right of representation of the manager was restricted. Since the third party is presumed to be in good faith in relation to the restriction of the manager’s right of representation, the Defendant is liable to file a lawsuit against the Plaintiff as an endorser

(3) Bad faith defenses

(A) Defendant’s assertion

On November 3, 1993, at around 15:00 on November 3, 1993, the Defendant asserts that, in light of the fact that Nonparty 1, the chief of trust securities of Defendant Bank, was aware of the fact that the instant endorsement was against the regulations of Defendant Bank, and that it was impossible to acquire it because it was a payment guarantee for a loan bill, the Defendant asserted that, at the time of the Plaintiff’s acquisition of the instant bill, Nonparty 1 knew of the fact that the instant bill was endorsed as above in violation of the restriction on management right, it can be set up against the Plaintiff due to the restriction on

(b) the sales board;

First, as alleged by the defendant, whether the plaintiff was aware of the fact that the control of the non-party 1 was restricted at the time of acquiring the bill of this case and that the non-party 1 became aware of the fact that the non-party 1 was not authorized to endorsement the bill of this case, Eul evidence 1, 2, and Eul evidence 4-1, 6-1, 7-1, and 11 of this case, and testimony of the court below's witness's testimony of this case is not reliable, but it is hard to recognize that the non-party 1 was not authorized to give 5 testimony of this case on the above 7th day before the date of this case's offering of the bill of this case's offering of the above 4th day of this case's offering of the bill of this case's offering of the above 5th day of this case's offering of the bill of this case's offering of the above 10th day of this case's offering of the bill of this case's offering of the 10th day of this case's offering of this case's offering of this case's offering.

B. The assertion that the acquisition of the Promissory Notes in this case is null and void in violation of the Financial Investment Services and Capital Markets Act

(1) The defendant's assertion

The defendant asserts that the acquisition of the Promissory Notes in this case is null and void, since the plaintiff acquired the Promissory Notes in this case, which are not commercial bills in violation of the above detailed regulations, since Article 6 (1) of the Regulations on the Credit Operation of Financial Institutions in the Bank of Korea, which was amended on April 1, 1993, provides that "the Promissory Notes in this case shall be limited to commercial bills."

(2) Determination:

As seen above, the promissory note of this case is a commercial bill, but it is not a financial institution, so the plaintiff is not obligated to comply with the Bank of Korea's order and regulations with respect to its operation (Article 1-2 and Article 4 of the Banking Act), and is subject to supervision by the Minister of Finance and Economy (Article 22 of the Mutual Saving and Finance Act in the case of the transaction of the Promissory Notes) (Article 22 of the Mutual Savings and Finance Act). Thus, even if the plaintiff traded a promissory note in violation of the credit regulations of the Bank of Korea, it does not affect its validity. Thus, the above argument by the defendant is without merit (Article 15 (3) of the Business Rules of the Mutual Savings and Finance Company of the financial institution division, "the bank shall not discount a bill or a loan bill with a maturity of six months or more" according to the purport of the oral argument before the oral argument is made. It seems that the plaintiff and the mutual savings and finance company should not discount a bill or loan on August 25, 1993."

C. The assertion that the acquisition of the Promissory Notes in this case is null and void in violation of the Mutual Saving and Financing Act

(1) The defendant's assertion

The defendant asserts on November 3, 1993 that the plaintiff, a juristic person established for the purpose of credit installment savings business, etc., could not grant a loan or discount bills exceeding 5/100 of the aggregate amount of capital, reserve funds and other surplus funds pursuant to Article 12 of the Mutual Saving and Finance Company Act, but on November 3, 1993, the defendant extended a loan to the same person in excess of KRW 71,00,000 by distributing the name of the loan to the non-party 6 to the non-party 10, non-party 11, and non-party 4 corporation, etc. as seven persons, such as the non-party 6-party 10,000,000. Thus, the loan made by the plaintiff in violation of the above Act is null and void, and therefore, the claim for the promissory note amount acquired as security for the above loan cannot be filed

(2) Determination:

However, the purport of Article 12 of the Mutual Savings and Finance Company Act, which prohibits, in principle, loans exceeding a certain amount to the same person, is that the loans of the Mutual Savings and Finance Company, which is a profit-making corporation, are originally entrusted to the autonomy of the society. However, due to the public nature due to its financial intermediary function, it is intended to give more opportunities to provide loans to a certain person by regulating excessive credit for a specific person. Therefore, this provision is deemed to be the so-called regulation regulation, and even if loans have been granted in excess of the limit, the validity of the private law is not affected. Therefore, the defendant'

(d) argument that the bill is acquired in bad faith;

(1) The defendant's assertion

As seen in paragraph (a) of the above basic facts, the defendant argued that the non-party 1 could not respond to the plaintiff's claim of this case because it was a malicious person who acquired the bill of this case with the intent to harm the defendant while being aware that the non-party 1 conspired with the above non-party 2 by deceiving the non-party 1, making the above non-party 1 endorsement on the bill of this case, and acquired it, or he knew that the bill of this case was endorsed by the above non-party 1, thereby undermining the defendant.

(2) Determination:

First of all, as to the assertion that the Plaintiff conspired with the above non-party 2 that the Plaintiff was deceiving the above non-party 1, the health belt, Eul evidence Nos. 5, 9, 10, and Eul evidence Nos. 4-1, 2, and 5 are not believed, and there is no other evidence to acknowledge it.

In addition, as to the plaintiff's assertion that he acquired the bill of this case with the knowledge of the above non-party 2's deception, Eul evidence Nos. 5, 9, 10, 4-1, 5-2, Eul evidence Nos. 6-1, 7-6, 11-2, and 7-1, 7-1 of the court below's testimony as to the non-party 2's assertion that the plaintiff acquired the bill of this case with the above non-party 2's awareness of the above non-party 2's deception, the non-party Nos. 5 and 7-2, and the testimony of the court below's testimony as to the non-party Nos. 4 and 7-2 of this case's testimony as to the non-party Nos. 7 and 7 of this case's testimony for the purpose of acquiring the bill of this case's loan to the non-party 2, the head of the trust securities of the defendant bank, and it seems that it was difficult for the plaintiff to recognize the above non-party 1 and the above non-party 2's testimony.

(e) The assertion that it was a malicious purchaser of a financing bill.

(1) The defendant's assertion

The defendant asserts to the effect that the above non-party 1 was endorsed to allow the above non-party 2 to lend funds as security without any cause, but the plaintiff acquired the bill with the intent to harm the defendant despite being aware of the above circumstances at the time of acquiring the bill of this case. Thus, the defendant cannot respond to the plaintiff's claim of this case.

(2) Determination:

On the other hand, as alleged by the defendant, the above non-party 1 endorsementd on the bill of this case for the self-financing of the above non-party 2, and even if the plaintiff knew of these circumstances at the time when the bill of this case was acquired, it cannot be denied liability for endorsement on the ground that it was not the party to the bill of this case (if it was endorsed for the purpose of financing, it is deemed that the defendant's assertion is more and more liable for it). Therefore, the above argument by the defendant is without merit.

F. The assertion that the right was waived

(1) The defendant's assertion

The defendant asserts that on November 11, 1993, the prosecutor of the defendant bank, the non-party 1, the chief of the prosecutor's office of the defendant bank, protested against the acquisition of this case and separate promissory notes, and that he waived the right to claim the amount of the promissory notes of this case against the defendant by the return of the case and separate promissory notes to the defendant by November 15, 1993, and by the agreement that the defendant will not make any claim against the defendant.

(2) Determination:

In line with the above, some of the testimonys stated in Eul evidence 1-5, Eul evidence 6-1 through 6, the date of the original trial witness, and the date of her attitude, which correspond to this, are not trusted, and there is no other evidence to prove it otherwise.

G. Determination on an application for the return of provisional payments

Since the defendant received 3,218,712,327 won, which was deposited in the original judgment on March 3, 1995, in order to escape the compulsory execution from the plaintiff after the original judgment was sentenced, the defendant sought return on the condition that the original judgment will be revoked, but the above application is just, as seen below, since the original judgment is justified.

4. Conclusion

Therefore, with respect to the total sum of the Promissory Notes 3,00,000,000 and the total sum of the Promissory Notes 1,50,000,000,000 as stated in the separate sheet Nos. 1,2 of the separate sheet, after the date of presentment for payment, each due date shall be from December 23, 1993, and with respect to the total sum of the Promissory Notes stated in No. 3,4 of the separate sheet No. 3,50,000,000,00 after the date of presentment for payment, each of the above requests shall be dismissed for payment after the due date of December 27, 1993, each of which is deemed reasonable to dispute the existence and scope of the obligations of each of the Defendant from December 27, 1993 to February 28, 195, which is the date of the original judgment, and the next day shall be 6% per annum of the previous sheet No. 25,00,000.

Judges Kim Jong-he (Presiding Judge)