어음의 원인채권의 입법화에 관한 연구

Abstract

In this paper, we introduce the current law and the Supreme Court ruling regarding the underlying claim of promissory notes, and examine its validity. According to the Supreme Court of Korea, when an underlying debt becomes extinct, the debtor of promissory notes can refuse the payment of the sum on the promissory notes. It is our opinion that when the debtor issued promissory notes for the purpose of payment, he had the intention of bearing the obligations of the promissory notes, and the creditor who was issued the promissory notes can exercise his rights through the promissory notes. If we consider the objective intentions between the persons involved, it is reasonable to apply the Promissory Notes Act, and it is also reasonable to apply the period of prescription on the claim of bill, which is one of the provisions of Promissory Notes Act. Furthermore, even if the underlying claim becomes extinct, the bill creditor possesses the promissory notes, which are an evidence of a just claim. Considering the objective intentions of the persons involved at the time when the promissory notes were issued or endorsed, and in light of the intent of the Promissory Notes Act, it is reasonable for the bill holder to exercise his claim of bill when the underlying claim becomes extinct due to the prescription. According to the Supreme Court, when the extinctive prescription on the rights of the bill is completed, it is possible for the creditor, who did not take measures to stop the extinctive prescription that is necessary to preserve his rights on the bill, can exercise his underlying claim. According to such a ruling by the Supreme Court, a question arises as to whether the debtor who paid off his underlying debt can exercise his underlying claim and be reimbursed against the endorser, who is his former self. If he cannot be reimbursed, it is against fairness because he cannot be reimbursed for his underlying debt although he paid off his underlying claim. If he can get reimbursed, we run the risk of giving rise to a complicated legal relation. In light of fairness and clear solution to the legal matter on promissory notes, it is reasonable to conclude that the creditor cannot exercise his underlying claim. In this paper, we propose a tentative amendment that stipulates the following in the Promissory Notes Act. If the underlying claim is not exercised within three years, the extinctive prescription of the underlying claim against the acceptor comes to completion. The purpose of the tentative amendment is as follows. According to the current law and the Supreme Court ruling, since the period of prescription differs by various types of underlying claim, it is difficult for the creditor of the promissory notes or the debtor to clearly understand his legal rights or duties and take appropriate measures. In order to solve such a difficulty, it is necessary to standardize the exercise period of various underlying claim and fix the period of prescription. According to the Promissory Notes Act, if the right of claim on a promissory note against the acceptor of a bill and the issuer of a promissory note is not exercised within three years from the expiration date, because the extinctive prescription is completed, the prescription period of the underlying claim is too fixed to three years.