[1] In case where the transferee of the claim has acted in bad faith or by gross negligence as to the existence of a special agreement prohibiting transfer, whether it is against the obligor (affirmative)

[2] Whether the assignee's bad faith or gross negligence as to the existence of a certificate of credit under a special contract can be inferred immediately only by the existence of such certificate (negative)

[3] The case holding that the transferee's bad faith or gross negligence cannot be inferred solely on the ground that there exists a lease contract stipulated in the special agreement on prohibition of transfer and the transferee is an executive officer or employee of the company, and in particular, he was in the core position such as transfer business, in case where an executive or employee acquired the claim for return of the security deposit for lease from the company in which

[1] Where a third party who is the assignee of a claim is in bad faith or is not in bad faith, but is grossly negligent in not knowing the prohibition of assignment of claim to the third party, the obligor may oppose the third party by the prohibition of assignment of claim.

[2] Generally, since the transfer transaction of nominative claim does not require the possession and presentation of the certificate of nominative claim (a contract, etc.) and so far as the transferor and transferee do not receive and deliver the certificate of nominative claim as much as the transfer and transferee do not need to carry and present it (in particular, if the transferee does not have experience in the transfer of claims, it shall be greater if the transferee does not examine the contents of the certificate of nominative claim, or if the transferee neglects an overall and detailed review only with regard to the amount of claim which is an ordinary interest and the time when the claim is exercised, etc., and in addition, there may be cases where the transferee does not know the existence of the certificate of nominative claim and the special agreement can be easily identified in the form of a simple special agreement, unless it is easily acknowledged that the special agreement exists in the form of a non-transfer and the special agreement can be easily identified.

[3] The case holding that the transferee's bad faith or gross negligence cannot be inferred solely on the ground that there exists a lease contract stipulated in the special agreement on prohibition of transfer and the transferee is an executive officer or employee of the company, and in particular, some of the executive officers or employees were in core status such as transfer business, in case where an executive or employee acquired the claim for return of the security deposit by the company

[1] Article 449(2) of the Civil Act / [2] Article 449(2) of the Civil Act, Article 187 of the Civil Procedure Act / [3] Article 449(2) of the Civil Act, Article 187 of the Civil Procedure Act

[1] Supreme Court Decision 96Da18281 delivered on June 28, 1996 (Gong1996Ha, 2364 delivered on February 12, 1999 (Gong199Sang, 534 delivered on December 28, 1999) Supreme Court Decision 9Da8834 delivered on December 28, 199 (Gong200Sang, 362)

Rain Construction, Inc.

Joint Architectural Corporation (Attorney Yang Young-tae, Counsel for defendant-appellant)

Nonparty 1 (Law Firm Southern-do General Law Office, Attorneys Park Sung-cheon et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 98Na8553 delivered on October 29, 1999

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

Among the grounds of appeal and the statement of the supplemental appellate brief submitted after the lapse of the time limit, the supplement to the grounds of appeal is also examined.

1. On September 1, 197, the court below decided that the non-party 2 Co., Ltd. (hereinafter referred to as the "non-party 2") transferred the above claim to the non-party 10 Co., Ltd. (hereinafter referred to as the "non-party 1") on the condition that the non-party 2 transferred the claim to the non-party 10 Co., Ltd. (hereinafter referred to as the "Non-party 2 Co., Ltd.") on the condition that the non-party 1 and the non-party 2 transferred the claim to the non-party 9 Co., Ltd. at the time of the above transfer of the claim to the non-party 1 and the non-party 10 Co., Ltd. (hereinafter referred to as the "non-party 2 Co., Ltd."), the non-party 1 and the non-party 2 transferred the claim to the non-party 1 and the non-party 9 Co., Ltd., the non-party 1 and the non-party 2 transferred the claim to the plaintiff 1 and the non-party 2.

2. The prohibition of assignment of a claim by an expression of intent by a party is not a case where a third party who is the assignee of the claim is in bad faith or bad faith, but where there is gross negligence in not knowing the prohibition of assignment of claim to a third party, the obligor may oppose the third party by the prohibition of assignment of claim (see, e.g., Supreme Court Decision 98Da49937, Feb. 12, 1999).

However, it is difficult to accept the judgment of the court below, on the grounds stated in its reasoning, that there exists a special agreement prohibiting the assignment of claims under the instant lease agreement, and that the court below promptly concealed the bad faith or gross negligence of Co-Defendant 10, etc. of the first instance court on the existence of the prohibited special agreement.

First of all, while the court below cited the existence of the instant lease agreement as one of the grounds for the non-party 10's bad faith or gross negligence, it should be deemed that the existence of the lease agreement stipulated in such special agreement can not be inferred immediately by its bad faith or gross negligence. This is generally because, as long as it is not necessary to carry and present a certificate of nominative claim (such as the contract) in the transfer transaction of nominative claim, there is a lot of situation where the assignee does not accept the certificate of claim between the transferor and transferee (in particular, if the assignee does not have experience in the transfer of claim, it is more likely that the assignee did not examine the contents of the certificate of claim, or if he did not know that the transferee did not know the whole and detailed review on the transfer of claim, the time of exercise of claim, etc., and the existence of the special agreement can not be easily acknowledged by the court below because the transferee did not know the existence of the first special agreement in the form of the non-party 1's first special agreement and the transferee did not know about the transfer of claim.

Then, it is difficult for the first instance court to 10 co-defendant 10, etc., who were officers and employees of the non-party 2 as at the time of the first acquisition of the claim of this case, and, in particular, some of them were in core positions, such as transfer business, to which they are the assignee, to take the grounds for confluence of bad faith or gross negligence, such as the non-party 10, etc., which are co-defendant 10, which are the transferor. Although the transferor company (non-party 2) and the transferee company's officers and employees (the co-defendant 10, etc. of the first instance court) cannot be denied that they have a close relationship with social life, at least as they are legally separate personality chain, it is difficult to view that the co-defendant 10, etc. were in contact with the lessor in terms of their status or position, and thus, they did not have any special reasons to believe that they did not have an opportunity to take over the claim of this case as a whole in the process of concluding the lease contract of this case as well.

In addition, this part of the judgment of the court below is based on the premise that Co-Defendant 10, etc. of the court of first instance received the instant loan agreement between the non-party 2 and the teachers' mutual aid association at the time of the initial acquisition of the instant loan, and that he was able to actually review or examine the instant loan agreement, or that he was able to confirm his bad faith and gross negligence, or that he was able to obtain the instant loan agreement from the non-party 2 at the time of the initial acquisition of the instant loan, or that co-defendant 10, etc. of the court of first instance based on the above reasons, he was able to obtain the instant loan agreement from the non-party 2 at the time of the initial acquisition of the instant loan, and it is difficult to accept this conclusion without any obvious reason or reason.

Nevertheless, the court below, without examining and examining the special circumstances mentioned in its reasoning, such as whether Co-Defendant 10, etc. of the court of first instance received the certificate of credit (lease contract) at the time of the acquisition of credit, concluded that he was grossly negligent for not knowing or not having known the existence of a special agreement prohibiting transfer at the time of the acquisition of credit. Accordingly, the court below erred in the misapprehension of facts as to the bad faith or gross negligence of Co-Defendant 10, etc. of the court of first instance who acquired the claim under a special agreement prohibiting transfer by failing to exhaust all necessary deliberations or violating the rules of evidence, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jack-dam (Presiding Justice)