(a) The opposing power of the designated transfer of claims not based on the certificate with a fixed date;

(b) A set-off against a claim prohibited from payment;

A. Although a nominative claim is transferred according to the agreement between the transferor, transferee, and the obligor, even if it was satisfied with the notice of assignment of claim and the obligor’s consent, if it is not based on the certificate with a fixed date, it cannot be set up against a third party as the above notice of assignment or consent cannot be set up against the third party. Therefore, the person ordered to pay the above claim has superior right to deny

(b) A set-off shall be carried out in the form of a set-off, that is, the fulfillment period for both parties' obligations shall arrive, and each obligor may set-off on an equal amount, but the garnishee who is ordered to prohibit payment may not set up against the obligee who requested the order as a set-off based on the subsequent claims.

A. Article 450 of the Civil Act; Article 498 of the Civil Act

Supreme Court Decision 73Da1025 Delivered on March 12, 1974

Plaintiff (Attorney Kim Tae-tae, Counsel for plaintiff-appellant)

Defendant

Gwangju High Court Decision 83Na760 delivered on April 10, 1985

The judgment below is reversed and the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

1. As to ground of appeal No. 1

According to the reasoning of the judgment below, on August 5, 1981, the plaintiff was issued a seizure order of KRW 20,320,000 against the defendant of the above non-party based on an executory exemplification of the notarial deed with a claim of KRW 9,320,00,00 against the non-party 1 for the loan principal and interest claim of KRW 81,576 against the non-party 1, and the original copy of the order was served to the defendant on August 6, 1981, and thereafter, on October 26, 1982, the court below rejected the plaintiff's claim for the refund of lease deposit against the above non-party 1 for the whole claim against the non-party 1, which is the obligee of the above court 82,1057, and the original copy of the order was delivered to the defendant on October 28, 1982, and confirmed the claim for the refund of lease deposit against the above non-party 2 against the defendant.

However, since the transfer of nominative claim is a legal principle that does not oppose the obligor or any third party without the obligor's notification or consent, and this notification and consent cannot oppose any third party other than the obligor unless it is based on the certificate with the fixed date, as determined by the court below, since the claim for the return of lease deposit against the defendant by the non-party 1 was transferred to the above non-party 2 according to the agreement between the above non-party 1, the defendant and the above non-party 23, even though the notification of the transfer of claim and the consent of the defendant were possessed by the non-party 2, it cannot be set up against the third party as the notification and consent of the above transfer cannot be set up by the fixed date. Thus, the defendant cannot set up against the third party as the assignment of claim, and the plaintiff who was ordered to claim the return of lease deposit against the defendant by the above non-party 1, who was ordered to the above non-party 1,

Nevertheless, the court below's rejection of the plaintiff's claim under the premise that the assignment of claim against the above non-party 1 against the above non-party 2 takes precedence over the assignment order of this case is justified as it erred by misapprehending the legal principles as to the requisite for setting up against the assignment of claim and raising an appeal against this.

2. Regarding ground of appeal No. 3

According to the reasoning of the judgment below, the court below held on April 22, 1981 that the non-party 1 paid 4,800,000 won to the defendant under the agreement that the non-party 1 and the defendant pay the interest at the rate of 3% per month between the non-party 1 and the defendant for the repayment of other claims, and that the non-party 1 paid 4,80,000 won to the defendant as a result of the remainder of the lease deposit, and he received the claim for refund of the lease deposit equivalent to the above amount, and immediately acquired the loan claim equivalent to the above amount by lending the money with interest rate of 3% per month to the plaintiff as interest rate agreement, and the time when the loan claim occurred. As of April 222, 1981, the time when the plaintiff's claim was seized and the maturity date was the date before the plaintiff's assignment order was terminated on July 2, 1982, which is the expiration date of the lease term.

A set-off requires both parties' fulfillment of their obligations, that is, there must be a set-off, and each obligor may set-off on an equal amount and may not set-off, but the third obligor ordered to prohibit payment is a legal doctrine that cannot set-off against the obligee who requested the order due to subsequent claims acquired.

First of all, although the original adjudication does not clearly state what the meaning is, but there is no decision on how the city set-off was made, second, the court below held that even if the defendant recognized that the amount received as the lease deposit was 6,800,000 won, the claim for the return of the lease deposit was extinguished as a set-off against the loan claim of 4,800,000 won, and last, there was no prior decision on April 22, 1981 regarding the time when the loan was created, and even according to the decision of the court below, it did not appear that the non-party 1 received the loan from the former branch of the national bank, and that the loan relationship between the plaintiff and the defendant did not appear to be the date when the loan was created, the court below did not err in the misapprehension of the legal principles as to the claim for return of the lease deposit of this case before the date when the loan was due and the date when the loan was due was due.

Even if the time of the occurrence of loan claims, as determined by the court below, cannot be deemed to be a offset. Thus, the court below should have deliberated and confirmed the above several points, and determine whether the lease deposit claims prohibited by the seizure order of this case and the Defendant’s loan claims are offset against each other after having deliberated and confirmed the above facts, but the court below should have determined that the entire claim of this case was extinguished by a offset without legitimate deliberation and confirmation. Thus, there is a reason to criticize the appeal.

3. Therefore, the judgment of the court below without the necessity of judgment on the second ground of appeal cannot be maintained significantly, and the case shall be reversed and remanded to the Gwangju High Court. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Chang-chul (Presiding Justice)