어음抗辯에 관한 硏究 : 惡意의 抗辯을 中心으로 = A Study on the Theories of Defence of Exchange

다국어 초록 (Multilingual Abstract)

The defences theories of bills exchange is one of the most interesing fields of law studies and is one of the most impotant areaa of the bills of exchange ,because most problems in the field of bills of exchange are closely related to the pracitice of the defence acts.
We can define the defences in billls of exchange as the every reasons on which the drawer(or maker) are able to refuse to pay the requested amount of money by the bearer. The article 17 will be applied to the both cases. However, personal relations are not limited and drawer is not able to claim the defence case that a bill is transeferred to a third person by endorsement assign. On the other hand, the asignee who Knowingly acted the transfer will be sued on a bill by the bearers defence.
Especially, as bill is one kind of negotiable notes(securities) transferable to many individuals, the problems occurring among creditiors and debtors are very confusirg and, therfore, the theories concerning bills of exchange are various.
The writer takes Rechtsscheintheorie as the theoretical basis of this research among many theories, because not only Rechtsscheintheorie founede by Jacobi is prevailing in Korea, Japan, and Germany, but also the theory is most reasonable in the aspect of the facilitation of bill negotiation and protection of the good faith purchaser of bill. Especially, the main part of this dissertion is the study on the classification theory of defences in bills of exchange to search for the basic and logical structure of the defence, and the development of the theory in this research is based on the Canaris's theory which is more advanced then that of Jacobi.
In addition, the problems caused by the theory which divided the defences into two, real and personal defences, are carefully examined and a new classification theory is developed. For example, some kind of the defences classified as the real defences are better to be classified into personal defences: for example, the defence for good faith purchaser of tills of exhange. In this cases, it is not clear that the Article 17 can be applied to these cases in the aspect of the interpratation of the law. Therefore, those defences can be classified into the third group, or the interests of the drawer and bearer of a bill can be harmonized and the classification can be more clear by the application of the Article 16, section 2, and Article 10. The writer supports this theory and classifies the defences into three: real, personal, and validity(the third) defence.
The bad faith defence which is an another important issue in the defence theories. The interpretation of the detriment of the debtor in the Article 17 is the main part of the bad faith defences and it was controversal issue since the Geneve Conference. The writer believes that the third proposal is more reasonable among many alternatives and prevailling in Korea, and have no objection, eventhough further research is required on the ovjective requirements of the bill purchaser concerning with the "knowingly acted to the detriment of the debtor." As the conclusion, from the above comparative research, the writer reaches to an conclusion that the new classification theory-three groups classification-is superior to the traditional(two groups) classification theory. The writer agrees with the new defence theory which employs "Rechtsscheintsorie" to solve the practical problelms of bill exchange, since the traditional theory which relys only upon the Article 17 is not clear and causes many confusion. Eventhough we recognize that the new defence theory is not perfect, the writer considers the new theory is better and acceptable because the traditional theories have more defects and shortcomings in solving the problems discussed in this dissertation.

목차 (Table of Contents)

• Ⅰ. 問題의 提起 및 硏究의 範圍
• Ⅱ. 어음基礎理論
• 1. 어음發生理論
• 2. 어음抗辯制限의 理論
• 3. 어음抗辯의 分類
• Ⅲ. 惡意의 抗辯
• 1. 序
• 2. 惡意의 抗辯의 認定根據
• Ⅳ. 惡意의 內容에 관한 學說
• 1. 共謀說
• 2. 了知說 - 抗辯外 存在了知 -
• 3. 確定認識說 - 3段階說 -
• 4. 客觀的損害了知說
• 5. 害意說
• Ⅴ. 惡意의 抗辯과 新어음抗辯
• 1. 惡意의 抗辯
• 2. 新어음抗辯
• Ⅵ. 惡意決定의 時期
• 1. 惡意有無判斷時期
• 2. 抗辯事由의 有無 判斷時期
• 3. 惡意의 立證責任
• Ⅶ. 結論