[전부금][공1974.4.15.(486),7776]
The deposit of a nominative claim and an entire claim transferred without using a certificate with a certified fixed date;
All creditors shall have superior rights over the assignee of the nominative claim, which is not based on the certificate with the fixed date.
Article 450 of the Civil Act
[Defendant-Appellee] Plaintiff 1
Seoul High Court Decision 200Na14484 decided May 1, 200
Seoul High Court Decision 72Na2210 delivered on June 5, 1973
The original judgment is reversed, and the case is remanded to the Seoul High Court.
The ground of appeal No. 1 by the plaintiff's attorney is examined.
According to the reasoning of the judgment of the court below, the court below found, based on related evidence, that the plaintiff was from February 17, 1972, with regard to KRW 1,722,50,00 among the claims for the return of the lease deposit against the defendant of the non-party 1, the plaintiff was delivered to the defendant as of February 17, 1972 by the Seoul Residents' and the Criminal District Court's Yeongdeungpo Branch's order for seizure and assignment of the claim, that the above non-party 1 had a claim for the return of the lease deposit amount of KRW 1,837,890 against the defendant as of this day, and that the above non-party 1 had a claim for the return of the lease deposit amount of KRW 1,837,890 against the defendant. Further, the court below rejected the plaintiff's claim for the return of the lease deposit against the defendant of the non-party 1 as of February 12, 1972 before the plaintiff's assignment order was delivered to the defendant.
However, as acknowledged by the court below, although the non-party 1's claim for the return of the lease deposit against the defendant against the non-party 1 was transferred to the non-party 2, there was the notification of transfer from the non-party 1 and the consent by the defendant, it cannot be asserted against the third party with the above notification or consent of transfer. Thus, the plaintiff who received the whole order of the above non-party 1's claim against the defendant can still have superior right by denying the transfer of the above claim, and therefore, it cannot be denied even as the debtor is the defendant (refer to Supreme Court Decision 62Da304 delivered on May 13, 1963). Nevertheless, the court below judged that the transfer of the lease deposit against the above non-party 1 against the defendant 2 takes precedence over the transfer of the claim against the above non-party 1, and there is no evidence that the above non-party 1 had already been extinguished before the assignment order of this case had already been extinguished due to any other reason than this transfer.
Therefore, the plaintiff's appeal on this point is with merit, and the judgment on the remaining grounds of appeal 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 on the bench.
Justices Yang Byung-ho (Presiding Justice)