지급제시기간 경과 후의 자기앞수표와 이득상환청구권의 행방 -대법원 2023. 11. 30, 2019다203286 판결을 중심으로-

The subject judgment(Supreme Court 2023. 11. 30, 2019da203286 Judgement) ruled as follows regarding a casher’s check that has elapsed the period of presentation for payment. Namely, ①the right of claim for reimbursement of benefit, which is a type of a nominative claim, arises for the legitimate holder, and ② the a casher’s check at this time is merely an evidentiary instrument that strongly supports the acquisition or transfer of the right of claim for reimbursement of benefit. Therefore, ③ it can not be said that the delivery of a casher’s check alone naturally satisfies the requirements for setting up against a third party other than the debtor as stipulated in Article 450, Paragraph 2 of the Korean Civil Act, and ④ the plaintiff in this case can seize the right of claim for reimbursement of benefit held by the defaulter by means of the notifying the issuing bank of the casher’s check of the intent to seize it through a disposition on default. However, the Decision of the Supreme Court en banc(Supreme Court 1976. 1. 13, 70da2462 Judgement), which the subject judgment uses as the basis for the development of the legal theory in this case, ruled that the act of the holder of a casher’s check transferring the check after the period for presentation for payment has passed, grants the transferee the right to receive the check amount, the right of claim for reimbursement of benefit, and the right to notify of transfer. The main purpose of this judgment is to acknowledge the transaction practice of casher’s check and to protect the holder. In addition, this judgment has not been changed or repealed to date. This paper opposes the conclusion of the subject judgment for the following reasons. The general opinion and precedents consider the legal nature of the issuance of a casher’s check to be a sale. Therefore, if a casher’s check is transferred after the period for presentation for payment has passed, the issuing party or the transferor already becomes a outsider in the transaction relationship of the casher’s check. As a result, the transferee is granted the right to notify of transfer, which means that he or she becomes the sole right holder for the right of of claim for reimbursement of benefit. Therefore, the creditor of the issuing party or the transferor does not have the status to seize the right of claim for reimbursement of benefit. The purpose of the the decision of the Supreme Court en banc granting the transferee the right to notify of transfer is to infer that the transfer of a casher’s check does not require the fulfillment of a requirement for opposing against a third party, or that there was the implicit consent on the requirements for setting up against a third party. In addition, the subject judgment ignores the purpose of the decision of the Supreme Court en banc and ignores the actual circulation process of the casher’s check. Therefore, there is a high risk that the transaction parties will refuse to use the casher’s check, and it will ultimately disrupt the domestic payment market itself.