[양수금][집34(3)민,149;공1987.2.1.(793),146]
The opposing power of the assignment of claims where a notary public delivers a notice of assignment to a debtor with the certification of the fixed date of a joint law office.
If a notary public obtains a certification of the fixed date of a joint law office and delivers it to a debtor on the same page, it is reasonable to interpret that there was a notification of the transfer of claim by means of a document with the fixed date, by deeming that the certification of the fixed date and the notification
Article 450 of the Civil Act
[Judgment of the court below]
Defendant-Appellee et al., Counsel for the defendant-appellant
Seoul High Court Decision 85Na3289 delivered on February 26, 1986
The judgment below is reversed and the case is remanded to Seoul High Court.
The defendant's attorney's grounds of appeal are examined.
According to the reasoning of the judgment below, the court below rejected the defendant's claim that the non-party 1 transferred the claim amounting to KRW 25,500,000 among the lease deposit amount of KRW 100,000,000 to the defendant on April 16, 1980, and notified the defendant of the transfer by means of contents-certified mail with a fixed date on May 19 of the same year. The defendant's claim as follows, 70,000,000 among the above bonds, was already transferred to the non-party 2 on January 18, 1980, and the defendant's obligation was extinguished because it was appropriated for the overdue rent and public charges, etc., and the remaining bond amount of KRW 30,00,000,000 to the non-party 1. The court below rejected the above defendant's claim that the non-party 1 transferred the claim to the non-party 2, as alleged by the defendant, and at the same time, obtained the notification of the transfer of the claim from the plaintiff 181 and the transferee.
However, according to the statements in the evidence No. 2-1, 2 (claim Transfer Certificate, Notice of Claim Transfer) and the testimony of Non-party 2 and Non-party 3 of the first instance trial witness of the court of first instance, which were adopted by the court below, the non-party 1 prepared a notice on the assignment of claims to the effect that the non-party 1 transferred 70,000,000 won out of the lease deposit to the defendant non-party 1 to the non-party 2, along with the defendant's agent Non-party 4, to the law office before the court of first instance, and it can be recognized that the non-party 1 received a fixed date certification and immediately delivered it to the non-party 4. Thus, if the transferor delivered it to the debtor's agent on the same page with the joint law office's certification and notice of the transfer of claims, it is reasonable to interpret that
Therefore, the claim of Nonparty 2 is satisfied the requisite to set up against the Plaintiff’s claim, and thus, the lower court should have priority over the Plaintiff’s claim. Nevertheless, the lower court determined that the Plaintiff’s claim takes precedence over the Plaintiff’s claim by erroneous interpretation of the legal doctrine as to the requisite to set up against the assignment of claim and committed an unlawful act that affected the conclusion of the judgment, and thus
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-soo (Presiding Justice)