[1] Whether the provisions of the Civil Procedure Act concerning service of the Civil Procedure Act may apply mutatis mutandis to whether notice of assignment of claims reaches the obligor (negative)

[2] The case reversing the judgment of the court below that the notification of the transfer of claims was not delivered to the debtor on the ground that the place of delivery of the notice of the transfer of claims is not a legitimate place under

[1] The delivery under the Civil Procedure Act is an act of notification made in accordance with the legal method in order to give a party or any other person involved in the litigation an opportunity to know the contents of the documents in the lawsuit. It does not take effect as a delivery by unlawful means unless it is specifically made in accordance with the law with regard to the place of service and the person to receive the service. Meanwhile, the notification of the transfer of claims takes effect upon arrival of the obligor. Here, the arrival refers to a situation where the other party is in an objective state where the other party can know the contents of the notification by social norms. As such, the delivery does not require strictness as seen above in terms of the place of service or the service, and the provisions of the Civil Procedure Act concerning the place of service do not apply by analogy. Therefore, even if the delivery under the provisions of the Civil Procedure Act concerning the delivery does not fall under the obligor’s address, residence, place of business or office, etc., the notification of the transfer of claims is recognized to have been made in an objective state where the obligor

[2] The case reversing the judgment of the court below that the notification of the transfer of claims was not delivered to the debtor on the ground that the place of delivery of the notice of the transfer of claims is not a lawful place under the

[1] Articles 11(1) and 450 of the Civil Act, Article 183 of the Civil Procedure Act / [2] Articles 111(1) and 450 of the Civil Act, Article 183 of the Civil Procedure Act

[1] Supreme Court Decision 82Meu439 delivered on August 23, 1983 (Gong1983, 1414), Supreme Court Decision 97Da31281 delivered on November 25, 1997 (Gong198Sang, 5)

Seoul Credit Guarantee Foundation (Law Firm Hanjin, Attorneys Han Han-soo et al., Counsel for the defendant-appellant)

Defendant

Seoul Central District Court Decision 2009Na22357 Decided December 8, 2009

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. The court below acknowledged the fact that Nonparty 1, a joint guarantor under the credit guarantee agreement of this case, transferred to the Plaintiff part of KRW 30.6 million out of the lease deposit claim of this case against the Defendant for the purpose of securing the joint and several liability, and that the notice of assignment of claims (hereinafter “the notice of assignment of claims of this case”) stating such transfer was delivered to the Defendant by the content-certified mail as of December 8, 2004 to the Seoul Gwangjin-gu Nowon-dong (hereinafter omitted) with the Defendant as the addressee, and the mail delivery certificate concerning the above content-certified mail was written by Nonparty 2, the “Defendant’s company partner fee of the Defendant” on December 9, 2004, and the Defendant’s domicile was used as the above Seoul Nowon-gu Nowon-dong (hereinafter omitted), and used the ○○ building of the same 5th floor as its dwelling, and operated the non-party 3 as the non-party 3 corporation at the same place of business among the same buildings.

Furthermore, the court below explained that the concept of “service” under the Civil Procedure Act may apply mutatis mutandis to whether the notice of assignment of claim reaches the debtor, and determined that the plaintiff’s claim under the premise that the notice of assignment of claim of this case was duly received to the defendant in this case without any evidence to prove that the notice of assignment of claim of this case was legally delivered to the defendant under the Civil Procedure Act (Article 183(1) main sentence of the Civil Procedure Act). The court below determined that the plaintiff’s claim is not reasonable, as long as there is no ground to believe that the notice of assignment of claim of this case was legally delivered to the defendant. (See Article 183(2) of the Civil Procedure Act)

2. However, we cannot agree with the above judgment of the court below.

(a) Service under the Civil Procedure Act is an act of notification made in accordance with the legal method in order to give a party or any other person involved in the litigation an opportunity to understand details of the documents in the lawsuit, and such service shall not take effect as delivery illegal, unless it is made in accordance with the law with regard to the place of service, the person to be served

On the other hand, the notice of the transfer of claims is effective upon arrival of the debtor, and the arrival here refers to the situation in which the other party is recognized to have been placed in an objective state where the other party can be aware of the content of the notice by social norms (see Supreme Court Decision 97Da31281, Nov. 25, 1997, etc.). As such, the arrival is a more flexible concept and does not require the strictness like the above service in the service place or in the service place, in terms of the receiver, etc., and the provisions of the Civil Procedure Act concerning the service place, etc. do not apply by analogy to the above provision of the Civil Procedure Act. Therefore, even in a place where the delivery place does not fall under the obligor’s address, residence, business place, or business place, etc., as stipulated in the provisions of the Civil Procedure Act concerning the

B. Regarding the instant case, the Defendant: (a) resided in the five floor of ○○ Building in Seoul Special Metropolitan City, Nowon-gu, where the notice of assignment of the instant case was delivered, and is working for the non-party 3 corporation on the second floor of the said building; and (b) according to the record, Nonparty 1’s claim for the instant transfer is the lessee’s return of the deposit that the non-party 1 paid from the Defendant on the fourth floor of the said ○○ Building. Nonparty 2, who actually received the notice of assignment of the instant transfer, was working for the non-party 3 corporation operated by the Defendant (the Defendant was working for the non-party 2 as a clerical staff to receive wages at the time of the receipt of the said notice of assignment of the instant transfer of the claim, and the Defendant asserted that the non-party 2 had never been described in the above office in order to receive wages at the time of receipt of the said notice of assignment of the claim. However, in light of the fact that the non-party 2 was easily identified as an employee of the Seoul Special Metropolitan Government Labor Service’s Office from September 1 to July 2005.

In full view of these circumstances, the notice of the assignment of claims in this case reaches the defendant's objective condition where the defendant, a debtor, was in an objective condition where the contents can be known under the social concept, barring any other special circumstances. Whether the defendant actually received the notice of the assignment of claims in this case does not affect it.

Nevertheless, on the premise that the provision on the service of the Civil Procedure Act concerning the notice of assignment of claims is applied mutatis mutandis, the lower court determined that the notice of assignment of claims of this case did not reach the Defendant on the ground that the place where the notice of assignment of claims of this case was delivered is not a lawful place under the Civil Procedure Act. In so determining, the lower court erred by misapprehending the legal doctrine on the notice of assignment of claims

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)