[채권양수금][미간행]
[1] The meaning of "the date of confirmation" as stipulated in Article 450 (2) of the Civil Code and the time of acquisition of opposing power against the third party in case where the third party obtains the fixed date after the notification of transfer of nominative claim by a certificate with no fixed date
[2] Where the assignee of a claim applies for provisional seizure of the debtor's property with the right to preserve the claim acquired by transfer of a nominative claim based on a certificate without a fixed date, and the court official receives the application for provisional seizure and marks the receipt date, whether the receipt date prior to the application for provisional seizure falls under the fixed date with regard to the written consent of the document attached thereto (affirmative)
[1] Article 450 of the Civil Code / [2] Article 450 of the Civil Code, Article 3 (4) of the Addenda ( February 22, 1958) of the Civil Code
[1] Supreme Court Decision 87Meu2429 delivered on April 12, 198 (Gong1988, 840) Supreme Court Decision 98Da28879 delivered on October 2, 1998 (Gong1998Ha, 2577), Supreme Court Decision 2000Da2627 delivered on April 11, 200 (Gong2000Sang, 1181) / [2] Supreme Court Decision 2000Da6248319 Delivered on August 13, 2002 (Gong201Da51725 delivered on November 8, 2002) (Gong203, 199)
Samh Industrial Co., Ltd. (Attorney Cho Jong-chul, Counsel for defendant-appellant)
Parkyang-hee
Seoul District Court Decision 2003Na3806 delivered on February 5, 2004
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
1. According to Article 450 of the Civil Code, the transfer of nominative claim does not oppose the obligor or any other third party unless the obligor notifies the obligor or does not consent (Paragraph 1), and the above notification or consent cannot oppose any third party other than the obligor unless it is based on the certificate with a fixed date (Paragraph 2), and "the fixed date" here means the date when it is legally recognized that the obligor can be fully evidence of the date it is impossible for the obligor to change the date and the parties subsequently became final and conclusive, and it is not possible for the third party to obtain the opposing power to the third party because it is made by the notice of the transfer of nominative claim or the certificate with no fixed date without the consent date, but it is impossible for the third party to obtain the opposing power to the provisional seizure after that date (see Supreme Court Decision 87Meu2429, Apr. 12, 198), and it is impossible for the assignee to receive the application for the provisional seizure with a written consent issued by the obligor together with the above fixed date and then to receive it with the above written consent from the court, the above public official.
2. According to the records, on March 19, 2002, the transfer of KRW 53 million among the defendant's claim for the payment of KRW 50 million to Tangiblecheon on March 19, 2002, on March 20, 200, three hundred-three-three-three (300,000,000,000) of the defendant's claim for the payment of KRW 50,000,000 among the above claim for the payment of KRW 50,000,000,000,000 to the defendant, and the defendant notified the defendant of the transfer of the claim to KRW 50,000,000 among the above claim for the payment of KRW 30,000,000,000,000,000,000 to the defendant's claim for the payment of KRW 300,000,000,000,000,000.
In light of the above circumstances, since the defendant prepared a letter of payment to the effect that he accepted the transfer of a claim to Tangiblecheon, it is deemed that the defendant consented to the transfer of KRW 50 million among the claim for the construction price as above without using the fixed date. Since the above letter of payment corresponding to the letter of acceptance by Tangiblecheon is a document attached to the application for provisional attachment of claim, which is received to the court along with the above application and affixed a seal to the above applicant, it shall be deemed that the fixed date has been obtained the fixed date in the above letter of payment. Thus, the defendant acquired the opposing power against the third party after the date. Since it is apparent that the letter of payment notification that the transfer of KRW 41,153,382 out of the claim for the construction price against the defendant was sent to the defendant, the defendant can first set up against the plaintiff by the repayment of the obligation against the type that satisfies the requisite for counterclaim.
Although the reasoning of the judgment of the court below is somewhat inappropriate, the conclusion of rejecting part of the plaintiff's claim of this case, which is premised on the fact that the repayment of debt to type is not possible to oppose the plaintiff, is just, and the argument in the grounds of appeal cannot
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.
Justices Cho Cho-Un (Presiding Justice)