[채권양도무효확인청구사건][고집1974민(1),263]
The case holding to the purport that a lawsuit seeking confirmation of the present legal relationship is sought with respect to confirmation of invalidity of the previous assignment contract
The plaintiff's purport of this case is to seek confirmation of the existence of current legal relations, that is, the claim of this case is currently located in the plaintiff, by asserting that there is no contract between the plaintiff and the defendant for the transfer of claims between the plaintiff and the defendant, while the plaintiff's possession of the plaintiff is sought confirmation of the invalidity of the transfer of claims and the transfer of claims between the plaintiff and the defendant.
Article 228 of the Civil Procedure Act
Supreme Court Decision 65Da2442 delivered on February 15, 1966 (Supreme Court Decision 1466 and 1467); Decision 72(23)809 of the Civil Procedure Act; Decision 228(23)927 of the Civil Procedure Act
Plaintiff
Defendant 1 and one other
Seoul Central District Court (73Gahap2024) in the first instance trial
The plaintiff's appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff.
Defendant 2 Co., Ltd. confirms that the Plaintiff has the right to the adjusted bonds of KRW 20,450,460 (one percent per annum 35 percent per annum) for the Defendant Company.
Defendant 1 confirms that the acquisition or transfer contract between the Plaintiff and the Plaintiff on April 18, 1973 on the above control bonds is null and void.
The original judgment shall be revoked, and the same judgment as the purport of the claim
1. We examine whether the part of the plaintiff's claim seeking confirmation of invalidity of the transfer or acquisition contract of April 18, 1973 on the transferred bonds against the defendant 1 can be seen as a claim seeking confirmation of the present right or legal relation which can be the object of the confirmation. However, although the plaintiff's claim of this case seeks confirmation of invalidity of the transfer or acquisition contract of the transferred bonds, the plaintiff's possession is asserted that the transfer or acquisition contract of the transferred bonds does not exist between the plaintiff and the defendant at present, and it is the purport of seeking confirmation of the present legal relation, that is, that the claim of this case, which was the object of the transfer, exists between the plaintiff and the defendant, is the purport of seeking confirmation of the existence of the present legal relation. Therefore, this is examined as to the merits.
2. (1) The Plaintiff is a bondholder under an emergency order to grow and stabilize the economy, and was holding a claim of KRW 20,450,416 against Defendant 2 Co., Ltd. (hereinafter referred to as Defendant Co., Ltd.). However, on April 18, 1973, the Plaintiff transferred the above conciliation claim to Defendant 1 to KRW 12,679,257 (the above amount of claim 60%) and notified Defendant Co., Ltd of the above assignment of claim on the same day, there is no dispute between the parties.
(2) The plaintiff asserts that the transfer of a conciliation company's claim without dispute is null and void as it is a juristic act that has considerably lost fairness due to the plaintiff's business depression, etc., and thus, the plaintiff's claim has reached this case for the purpose of seeking nullification of the claim. Since the defendants dispute this, the plaintiff's transfer of the conciliation company's claim to defendant 1 as the price equivalent to 60% of the amount of this claim cannot be viewed as an unfair legal act, and there is no other evidence to acknowledge the above transfer of claim as an unfair legal act. Thus, the plaintiff's above assertion is groundless.
(3) The plaintiff's above claims were prohibited from transferring the above claims in accordance with the above emergency order as an adjustment bond of five years with a three-year grace period under the emergency order for economic stability and growth. The above assignment of claims was approved by the Seoul Regional Tax Office on April 17, 1973, a day before the above assignment of claims. If the plaintiff knew of the above claims in advance, it would not be transferred at an amount equivalent to 60 percent of the amount of claims. Since this constitutes an error in the important part of the contents of legal act, it is invalid as it constitutes a violation of the mandatory law prohibiting transfer, and it would be cancelled as an expression of intent due to mistake. As such, the plaintiff's assertion that the above claims were in existence, and the defendant's assertion that the above claim had been filed in order to seek nullification of the above assignment of claims. Accordingly, the plaintiff's assertion that there was no provision prohibiting the transfer of the above emergency bond, and that there was no difference between the testimony of the court below and non-party 1 at the court below and the above emergency order and the purport of the above transfer of claims.
3. In the same way, since the above assignment of claims between the plaintiff and defendant 1 is valid, the plaintiff's claim for objection based on the premise that the above assignment of claims is invalid and cancelled is without merit, and the judgment of the original court in conclusion is just, and the plaintiff's appeal against this is without merit, and it is dismissed in accordance with Article 384 of the Civil Procedure Act, and it is so decided as per Disposition by applying Articles 89 and 95 of the Civil Procedure Act with respect to the
Judges Kim Hong (Presiding Justice)