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洪裕碩 동국대학교 대학원 1984 大學院硏究論集-東國大學校 大學院 Vol.14 No.-
Defences in the law of Bill of Exchange are generally classified into two categories: personal defence and real defence. The basis for the classification is based on the article 17 of the law. The article 17 reads: Article 17 (restriction against personal defence) Person sued on a bill of exchange cannot set up against the holder defences founded on their personal relation with the drawer or with previous holders, unless holder, in acquring the bill, has knowingly acted to the detriment of the debter. Because the article 17 is over simplified to identify some case whether it is personal defence or real defence. The classification of the defence is the most important basis for the security (or protection) of negotiability of bill and the drawer. However, there have been a lot of controversy in practices of the defences, because we have relied on the article 17 which has many defects in itself. To solve this problem, a new theory for classification was developed by Hefermehl, Zo¨llner, and Canaris and widely supported by many scholars and practitioners in West Germany. This study mainly reviews and introduces the Canaris’s theory which succeeds to and is very much influenced by the Jacobi’s “Rechtsscheintheories” in the aspect of the defence classification. The content of the study is as followings: Ⅰ. Introduction Ⅱ. The concept of the defence of Bill Exchange 1. Introdection 2. The relationship between the defence classification and the Article 17 3. The process of the Establishment of the Article 17 Ⅲ. The New Defence theory in West Germany 1. Introduction 2. Classification of the Defence theories (Canaris) a. Nicht Aussohlussfa¨hig Einwendungen b. Aussohlussfa¨hig Einwendungen c. Nicht Aussohlussbedu¨rftig Einwendungen Ⅳ. The theory of Europeans and Japanese to the West Dutch Einwendungen 1. Thories of Ulmer, Ostheim, and Martens 2. Theories of Japan and korea Ⅴ. Conclusion Many research and discussions of the defence theory are in process in the several countries which adopted Geneve Uniform Law. In Japan, there is a group which strongly supports the Canaris’ defence theory and attempts to apply this theory to practice widely, eventhough there is a group against to the theory. In this context, it is felt that a deeper study of the defence theory should be performed to evaluate the possibility of inroducing the theory to Korea.
洪裕碩 동국대학교 대학원 1983 大學院硏究論集-東國大學校 大學院 Vol.13 No.-
In accordance with the economic development, bill plays very important role in the modern society as one of the main credit and negotiable instruments. The endorsement system of bill was developed originally as a means of exercise of right. However, according to the development of the function of bill endorsement, bill has been used as one of the means of credit and negotiation. Obviously, there are numbers of theories and problems about the efficacy of bill endorsement. The purpose of this study is to suggest a desirable direction of research about the theories and practices of the bill endorsement system in Korea by making a comparative analysis of the various theories and the court cases. The contents of this study consists of the following five parts: 1) Introduction 2) Title Transfer Efficacy of Bill Endorsement(Ubertrakungwirkung) 3) Mortgage Efficacy of Bill Endorsement (Haftungowirkung) 4) Entitle Efficacy of Bill Endorsement (Legitimationfunktion) 5) Conclusion In the study, only the general efficacy of bill endorsement was discussed because the Korean and Japanese Law are originated from the Geneva Uniform Law. and, for the same reason, the discussion concentrated on the comparative analysis of the theories and practices (court cases) of korea and Japan. In the conclusion, it was point out that there are emerging divergencies between the theory and practice of the efficacy of bill endorsement. These divergencies mainly come from the signature system in the Geneve Uniform Law and the seal system of our, bill Act. Therefore, there should be continuous study on the theory of the efficacy of bill endorsement to decrease these divergencies.