[2] In a case where a third debtor bank Gap consented to the pledge of the deposit claim between Eul and Byung corporation, and immediately after the pledgee Eul received a notice of cancellation of the pledge by facsimile from Eul corporation, the case holding that the bona fide bank Gap may assert that Byung company's repayment to Byung is valid even if Eul company was not agreed upon, and thus, Eul company's repayment to Byung company

In addition, the notification of the above termination is the notification of the so-called concept that the pledgee notifies the garnishee that the pledge contract has been cancelled, and the notification becomes effective upon the arrival of the garnishee, and there is no need to give a special method to the notification.

[2] In a case where Gap bank, a third debtor, consented to the pledge of the deposit claim between Eul corporation and Byung corporation, and Eul corporation, a pledgee Eul sent the pledge cancellation notice to Eul bank's branch by facsimile, and Gap bank's employees paid deposit claims to Byung company, immediately after Gap received the pledge cancellation notice, the case holding that Eul bank, a bona fide, can assert that Eul company's repayment to Byung company is valid even if it did not have the other party to the pledge cancellation notice, in light of the document form, content, reception place, etc., although the other party to the pledge cancellation notice was not stated in the pledge cancellation notice, and Eul company's termination notice was sent to Gap bank by facsimile and facsimile, and thus Eul company's termination notice of the pledge contract became effective.

1. The court below decided that the above provision is not applicable to the case on the ground that the defendant, who is a garnishee, is liable to pay the deposit KRW 1 billion and damages for delay thereof to the plaintiff, the pledgee, under Article 353 (1) and (2) of the Civil Act, unless there are special circumstances. Since the pledge contract of this case was terminated, the defendant's assertion that the pledgee, as the pledgee, did not have the obligation to pay the deposit, is rejected for the reasons indicated in its reasoning. On the other hand, in relation to the assignment notice and the prohibition principle provided in Article 452 (1) of the Civil Act, the "value cancellation notice (No. B. 8)" sent by the plaintiff by facsimile is not the receiver, and it is not effective against the defendant, and further, in light of the circumstances stated in its reasoning, the defendant cannot be deemed

2. However, it is difficult to accept the above determination by the court below for the following reasons.

Article 450 of the Civil Act provides that the establishment of a pledge for a nominative claim shall not be effective against the third obligor or any third obligor unless the pledger notifies the third obligor of the fact of the establishment of the pledge right, or the third obligor gives his consent thereto (Article 349(1) of the Civil Act). Article 451 of the Civil Act provides that the effect of consent and notification to the assignment of claim shall apply mutatis mutandis to such case (Article 349(2) of the Civil Act). In cases where the assignee has notified the obligor of the assignment of claim, Article 452(1) of the Civil Act provides that the bona fide obligor may set up a defense against the assignee due to any cause that can be set up against the assignee even if the assignee has not yet transferred the claim, shall also be applied mutatis mutandis to the establishment

Meanwhile, where the assignment contract has been rescinded or terminated after the notice of assignment of nominative claim was given, in order to oppose the original obligor on the ground of the cancellation, the assignee of the claim must notify the obligor of such cancellation, etc. (see, e.g., Supreme Court Decisions 93Da17379, Aug. 27, 1993; 201Da17953, Nov. 29, 2012). Such legal principle applies likewise to cases where the third obligor is notified of the establishment of the pledge right, or the third obligor consents thereto, and the contract has been rescinded, terminated, or agreed upon. Therefore, if the third obligor gives consent of the establishment of the pledge right and the pledgee notifies the third obligor of the termination of the pledge right, and if the pledgee notifies the third obligor of the termination of the pledge right, it is reasonable to deem that the pledgee is liable for the third obligor’s bona fide breach, even if he/she has not yet notified the third obligor of the termination of the pledge right.

In addition, the notification of such termination is a notification of the so-called concept that the pledgee notifies the garnishee of the cancellation of the pledge contract (see, e.g., Supreme Court Decisions 2000Da2627, Apr. 11, 2000; 2010Da28840, Mar. 22, 2012). The notification becomes effective upon arrival to the garnishee (see, e.g., Supreme Court Decision 2010Da57, Apr. 15, 2010), and there is no need for a special method to notify.

원심판결 이유와 기록에 의하면, 제3채무자인 피고는 2010. 11. 23. 원고와 주식회사 대자연네트웍스(이하 ‘대자연네트웍스’라고 한다) 사이의 이 사건 예금채권에 대한 질권설정을 승낙한 사실, 질권자인 원고는 2010. 12. 16. 피고의 역삼역지점에 모사전송의 방법으로 ‘질권해제통지서(을 제8호증)’를 전송한 사실, 위 질권해제통지서에는 “(주)대자연네트웍스와 체결한 서울시 강서구 (주소 생략) 소재의 임대차계약과 관련하여 계약금에 대해 질권설정한 다음 표시예금에 대하여 질권설정이 해제되었기에 통지합니다.”라는 기재에 이어서 질권의 목적물인 이 사건 예금채권의 내용이 기재되어 있고, 하단에 질권자(채권자) 원고의 주소, 회사명, 대표이사의 직위, 이름과 함께 원고 대표이사의 직인이 날인되어 있는 사실, 피고 직원 소외인은 질권해제통지서를 모사전송 받은 직후 질권설정자인 대자연네트웍스에 이 사건 예금채권을 변제한 사실 등을 알 수 있다.

이러한 사실관계를 앞서 본 법리에 비추어 살펴보면, 우선 질권해제통지서에 통지의 상대방이 기재되어 있지 않았더라도 문서의 형식이나 기재 내용, 수신처 등에 비추어 보면 그 통지의 상대방은 피고라고 볼 수밖에 없고, 원고가 질권해제통지서를 모사전송의 방법으로 피고에게 전송함으로써 질권설정계약 해지의 통지는 피고에게 도달하여 그 효력이 발생하였다고 할 것이며, 그렇다면 아직 원고와 대자연네트웍스 사이에 합의해지가 되지 아니한 경우에도 선의인 피고로서는 대자연네트웍스에 대한 변제를 원고에게도 유효하다고 주장할 수 있다. 그리고 기록상 피고가 이 사건 질권설정계약이 아직 해지되지 않은 사실을 알았다고 볼 만한 사정이 증명되었다고 보기도 어렵다.

Nevertheless, on the grounds indicated in its reasoning, the lower court determined that there is no room for accepting the notification of transfer and the prohibition of a speech under Article 452(1) of the Civil Act. In so doing, the lower court erred by misapprehending the law of logic and experience and exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine as to notification and a speech at the time of termination of a pledge agreement for the purpose of a nominative claim, or as to a bona fide third party obligor, thereby adversely affecting the conclusion

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)