채무자의 이의를 보류하지 아니한 채권양도 승낙에 의한 대항불능의 취지와 양수인의 선의·무중과실

• 영문명: Purpose of Non-opposability by the Obligor s Consent without Reservation in Assignment of the Nominative Claim and the Assignee’s good Faith without gross negligence
• 발행기관: 충북대학교 법학연구소
• 저자명: 오수원(Oh Su Won)
• 간행물 정보: 『법학연구』第29卷 第1號, 213~242쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.06.30

영문 초록

Once a claim is transferred, it is transferred from the assignor to the assignee while retaining its identity. Accordingly, it s the rule that the obligor may set up against the assignee any defense arisen against the assignor prior to the receipt of the notice(Article 451 Provision 2 of Korean Civil Code). However, Article 451 Provision 1 of the Korean Civil Code prescribes that the obligor who has given his consent to transfer the claim without reservation, cannot set up against the assignee any defense that he could have set up against the assignor. In principle, the requisites for the occurrence of a certain legal effect are based on the provisions of the original law. Nevertheless, without regard to the legal provisions, in order for the obligor s non-opposability with the consent to transfer the claim without reservation, it is said that, as one of the requisites for the occurrence of the effect of the claim assignment, the assignee should not be aware of the existence of the defenses, Further on, some say that the assignee should be either guilty of simple negligence or guilty of gross negligence. And the rationale for the requisite such as the good faith or simple egligence or gross negligence is to relate to the purpose or the legal quality of the non-opposability by the obligor s consent without reservation under Article 451 provision 1 of Korean Civil Act. Because Article 450 of Korean Civil Code prescribes that the obligor s consent, along with the assigner s notice, is a requisite for setting up assignment of nominative claim against obligor, and that the attainment of such requisite is necessary to make the transfer of nominative claim effective, the obligor s consent should be considered for the purposes of the assignee. In addition, Article 451 limits the range of persons to whom the obligor could not set up to the assignee, so that it could not be said that the Article is intended to protect trade safety. The obligor takes over a obligation that does not exist with his consent without reservation, it could be said that the consent is a gesture of burden in legal action aimed at the expense of a third party, and Article 451 Provision 1 of Civil Code is to protect the trust of the assignee. That is the significance of the non-opposability as provided for in Article 451 Provision of the Civil Act, and it has nothing to do with public confidence, and the cut of the defenses in the trade of property or securities claim, and sanctions against the obligor. In regard to the consent of the obligor without reservation under Article 451 provision 1 of Civil Code, the loss of the obligor s defense protects the assignee while sacrificing the the obligor, and it could be a severe and unexpected blow to the obligor, who is not well aware of the law. This is why it is necessary to limit the liability of the obligor in the interpretation of this article. If the obligor has failed to recognize the existence of the defenses, he could be guilty of gross negligence with error(Article 109 of Civil Code). Considering the case of he obligor’s error, it should be said that the assignee who is guilty of gross negligence would not be protected. In sum, the obligor who has given his consent without reservation, he cannot set up against the assignee who is neither aware of the existence of the defenses nor guilty of gross negligence any defense that he could have set up against the assignor.

목차

Ⅰ. 머리말

Ⅱ. 일본에서의 논의

Ⅲ. 민법 제451조 제1항의 대항불능제도의 취지 및 양수인의 선의 등의 요건

Ⅳ. 맺음말

키워드

assignment of claim requisite for setting up consent of the obligor contract in favour of third person guilty of gross negligence