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어음관계가 원인관계에 미치는 영향 -대법원 2010. 12. 23. 선고. 2010다44019판결-
홍복기 ( Bok Ki Hong ) 한국상사판례학회 2011 상사판례연구 Vol.24 No.2
In the typical case, the drawer issues a note because of an underlying transaction, specifically to effect payment of an obligation that the transaction creates. An obligee, however, is not ordinarily required to take a note that is issued for an underlying obligation. Nevertheless, the parties generally agree on the use of an note and the payee takes the note that is issued to her. She thereby acquires rights with respect to the note, normally does not lose the rights against the issuer on their underlying deal. Therefore, the issuer`s liability on the note does not ordinarily replace her underlying obligation. Taking a note discharges the underlying debt when the parties to the deal agree to this effect. Such an agreement, which is very rare, is effective to discharge the underlying obligation regardless of the nature of the note. This article reviews the theory and the Korean Supreme Court`s ruling regarding the overall effect between the liability on the note and liability on the underlying transaction.
주식의 임의매매와 부당권유로 인한 손해배상청구 (대법원 2003. 1. 24. 선고, 2001 다 2129 판결)
홍복기 ( Hong Bog Gi ) 한국상사판례학회 2003 상사판례연구 Vol.15 No.-
This Article examined a Korean Supreme Court`s ruling regarding (1) a broker-dealer`s solicitation of securities transactions by promising a customer to assume all or a part of the losses; (2) a broker-dealer`s unsuitable recommendation of securities transactions; and (3) consideration of benefits and comparative negligence of a customer. First, a securities company, or officers and employees thereof should not solicit securities transactions by promising a customer to assume all or a part of the losses incurred as a result of the transaction concerned. This kind of promise is void and cannot be enforced by courts. second, the suitability doctrine prohibits a securities broker-dealer from recommending a security to a customer unless she has a reasonable belief that the security Is suitable for that customer. This doctrine imposes a duty on the broker-dealer to take the financial situation, risk threshold, investment sophistication, investment objectives, and other securities holdings of her customers into account when she recommends a security to them. A broker-dealer who recommended an unsuitable security could be subject to legal sanctions. Finally, a customer`s benefits and negligence should be considered in deciding damages caused by a broker-dealer`s discretionary transaction and unsuitable recommendation of stocks.