어음행위관련이론의 현실적 적합성에 관한 검토

The transaction of the bill of exchange or the promissory note (hereinafter called as “promissory note”) is regulated by not only the Promissory Note Act but also the Banking Act. But all the studies on the legal problem arising from the transaction of the promissory note are focused only on the clarification of the legal meaning of the Promissory Note Act. Especially, the Intend of the Promissory Note Act is the guarantee of the smooth negotiation. Nevertheless, every theories on the transaction of the promissory note insist that all the transaction of the promissory note, no matter the negotiation, shall be excluded from the principle of the civil law. The Banking Act does provide the service on the promissory note as the business of the bank established and incorporated by the Banking Act and the clearing house rule is being in effect according to the Banking Act. So, the transaction of the promissory note shall be applied by the Banking Act, the same as it is applied by the Promissory Note Act. And the transaction of the promissory note unrelated with the negotiation shall be ruled by the principle of the civil law. The dead zone of the just defence due to the deficit of the provision on the cutting off the defence(Article 17 of the Act of the Bill of Exchange), shall be complemented by the estoppel and the prohibition of the abuse rule not by the abstruse theories.