[1] The meaning and legal nature of the assignment of nominative claim / Whether the assignment of nominative claim has the effect of transferring the nominative claim in case where a person without the authority of disposal transfers the nominative claim (negative in principle)

[2] Where the transferor has transferred a nominative claim to the first transferee, and the first transferee has legally met the requisite to set up against the second transferee by a certificate with a fixed date, whether the second transferee can acquire the same claim (negative), and in this case, whether the same applies to the case where the transferor and the first transferee agree on the first transfer contract to secure other obligations (affirmative) / Whether the second transferee naturally acquires the claim in case where the transferor and the first transferee, after the second transfer contract, notify the obligor of the fact, re-transfer of the claim by notifying the obligor of the fact to re-transfer (negative)

[1] The assignment of nominative claim means that the subject to whom the claim is attributed is changed by a juristic act and has the nature of the so-called quasi-property right or the act of disposal, and thus, to be effective, the transferor must have the authority to dispose of the claim. In a case where a person without the authority to dispose of nominative claim transfers a nominative claim, barring any special circumstance, it cannot be effective as the assignment of claim.

[2] If the transferor has transferred a nominative claim to the first transferee, and the first transferee has lawfully met the requisite for setting up against him/her by a certificate with a fixed date, thereby transferring the claim to the first transferee and losing the transferor's right to dispose of the claim. Thus, even if the transferor has transferred the same claim to the second transferee, the second transferee cannot acquire the claim even if the transferor has externally transferred the claim to the first transferee in order to secure other obligations. In this case, even if the transferor has concluded the first transfer contract to secure the first transferee's obligation, it would be impossible for the second transferee to acquire the claim in accordance with the second transfer contract.

In addition, even if the transferor and the first transferee agreed upon the second transfer contract after the second transfer contract, and the first transferee notified the obligor of the fact that the claim would again revert to the transferor, barring any special circumstances, the second transfer contract that the transferor did not have the authority to dispose of may not become effective as the assignment of claim, and thus, the second transferee cannot be deemed to have acquired the claim as a matter of course.

[1] Article 450 of the Civil Code / [2] Article 450 of the Civil Code

[1] Supreme Court Decision 2010Da100711 Decided March 24, 2011 (Gong2011Sang, 831)

Plaintiff (Law Firm Woo, Attorneys Kim Sang-hoon et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Cheongn, Attorneys Lee Dong-hwan et al., Counsel for the defendant-appellant)

Busan High Court Decision 2014Na8844 decided June 30, 2015

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).

1. On the ground of appeal that the object of the second assignment contract is the claim for return of future lease deposit to be recovered by Nonparty 1 of the transferor.

Based on the circumstances indicated in its holding, the lower court determined that the object of the second assignment contract is only the claim for the return of the lease deposit of this case, which is the same as the claim subject to the transfer under the first assignment contract, and that it is difficult to view the transferor Nonparty 1 as the future claim for the return of the lease deposit that will be recovered from Nonparty

Examining the reasoning of the judgment below in light of the records, the judgment below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of the purpose and intent of the parties.

2. As to the allegation in the grounds of appeal that the Plaintiff has the legitimate transferee status of the claim to return the lease deposit of this case

A. The assignment of nominative claim has the nature of the so-called quasi-property act or disposal act as the subject to whom the claim is reverted is changed by a juristic act (see Supreme Court Decision 2010Da100711, Mar. 24, 2011). For this purpose, the transferor must have the authority to dispose of the claim. In a case where a person without the authority to dispose of a nominative claim transfers a nominative claim, barring any special circumstance, the transferee shall not acquire the claim, and thus, the transferee shall not acquire the claim.

If the transferor has transferred a nominative claim to the first transferee, and the first transferee has lawfully satisfied the requirements for counterclaim by the certificate with a fixed date, thereby transferring the claim to the first transferee and the transferor has lost the authority to dispose of the claim. Thus, even if the transferor thereafter transferred the same claim to the second transferee, the second transferee cannot acquire the claim. In this case, even if the transferor has made the first transfer contract to secure other obligations, even if the transferor has made the first transfer contract to secure the first transferee, it would be impossible for the second transferee to acquire the claim by the second transfer contract made thereafter.

In addition, even if the transferor and the first transferee agreed upon the second transfer contract after the second transfer contract, and the first transferee notified the obligor of the fact that the claim would again revert to the transferor, barring any special circumstances, the second transfer contract that the transferor did not have the authority to dispose of may not become effective as the assignment of claim, and thus, the second transferee cannot be deemed to have acquired the claim as a matter of course.

B. After finding the facts as stated in its holding, the lower court determined that: (a) the transfer of nominative claim has the nature of quasi-property right or disposal act; (b) the disposal authority is required for the transferor; (c) the lease deposit refund claim of this case was finally transferred to Nonparty 2 by notification by the first assignment contract and the certificate with a fixed date; and (c) the transferor’s second assignment of the lease deposit of this case was null and void as the transfer of the lease deposit of this case was made by the non-party 1, the non-party 1, who was the non-party 1, the non-party 1, and thus, the second assignment of the lease deposit of this case was made invalid as the transfer of the lease deposit of this case; and (d) The second assignee did not acquire the lease deposit refund claim of this case without acquiring the lease deposit refund claim of this case; and (e) even if the first transfer of the lease contract of this case was agreed upon, Nonparty 1 would have again acquired the lease deposit of this case, and therefore, it cannot be valid as the second transfer of the lease of this case.

C. Examining the reasoning of the judgment below in light of the aforementioned legal principles and the records, although the court below's reasoning is not appropriate, the second assignment of the claim for the return of the lease deposit in this case, which was transferred to Nonparty 1, the transferor, who lost his disposal authority after the transfer to Nonparty 2, did not take effect as the assignment of the claim, and even if the first assignment contract was concluded thereafter, the same applies to the case where the first assignment contract was concluded thereafter, and thus, the second assignee cannot acquire the lease deposit in this case. The judgment below is just and acceptable. The judgment below did not err in the misapprehension of legal principles as to the position of the subordinate transferee, which is equipped with the requisite to set the order of priority between the dual assignee of the claim, as alleged in the ground of appeal.

3. Conclusion

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.

Justices Jo Hee-de (Presiding Justice)