Whether Article 452(1) of the Civil Act may apply mutatis mutandis to cases in which the assignment of claims is cancelled or terminated by agreement (affirmative)

Article 452 (1) of the Civil Act provides for protecting bona fide debtors in cases where the assignment of a claim is not established or null and void on the ground that “in cases where the transferor has notified the obligor of the transfer of claim, the assignee has not yet transferred such claim, or such transfer is null and void, the obligor, who is bona fide, may oppose the assignee.” Paragraph (2) of the same Article provides that “In cases where the transfer of claim is not established or null and void without the consent of the assignee, the notification under the preceding paragraph shall not be withdrawn without the consent of the assignee.” This may also be analogically applicable to cases where the assignment of claim becomes null and void retroactively due to the cancellation or agreement of the assignment of claim. In such cases, where the assignment contract is rescinded or terminated after the notification of the transfer of nominative claim, in order to oppose the original obligor on the ground of the cancellation, etc., the assignee of the claim shall obtain the consent of the assignee or notify the obligor of the fact that the assignee of the said cancellation, etc. is the bona fide debtor, who was not aware of the cancellation, etc. of the transfer contract until the requirements are met.

Article 452 of the Civil Act

Pos Construction Co., Ltd. (Law Firm New Seoul, Attorneys Yang Jong-sik et al., Counsel for the defendant-appellant)

Korea Housing Guarantee Co., Ltd. (Law Firm Yuil, Attorneys Jeong Ho-ro et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na72078 decided January 13, 2011

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Article 452 (1) of the Civil Act provides for protecting bona fide debtors in cases where the assignment of a claim is not established or null and void on the ground that the transferor has not yet notified the obligor of the transfer of claim, or where the transfer is null and void, the bona fide obligor may set up against the assignee, even if the transferor has not yet notified the obligor of the transfer of claim, and Paragraph (2) of the same Article provides for protecting bona fide debtors in cases where the transfer of claim is not established or null and void without the consent of the assignee. This may be analogically applicable to cases where the assignment of claim becomes null and void retroactively due to the cancellation or agreement of the transfer of claim. Thus, in cases where the transfer contract is rescinded or terminated after the notification of the transfer of nominative claim, if the transferor intends to set up against the original obligor on the ground of such cancellation, etc., the transferor shall obtain the consent of the assignee of the claim or notify the obligor of the fact that the assignee of the said cancellation, etc. is a bona fide debtor, who was not aware of the cancellation, etc. of the transfer contract until the above requisite is met.

Examining the reasoning of the judgment below in light of the above legal principles and the records, although there are some inappropriate parts at the time of the judgment below's explanation, the court below determined that the plaintiff agreed to cancel the above assignment contract and notified the defendant of the transfer of the claim for the refund of the deposit of this case against the defendant, and that the plaintiff and the Acheonyang Construction agreed to cancel the above assignment contract and notified the defendant thereof, but prior to the notification, the defendant had the opposing claim against the Acheonyang Construction. Furthermore, the decision that the defendant may set-off against the plaintiff after the cancellation of the above agreement is just and there is no error of law that affected the conclusion of the judgment by either misapprehending the legal principles as to the scope of application of Article 452 (1) of the Civil Act or misapprehending the legal principles as

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)