Whether an obligor constitutes a third party provided for in Article 108 (2) of the Civil Act in cases where a contract for transferring claims with false indication is concluded (negative)

The third party under Article 108(2) of the Civil Act does not refer to all the persons other than the party of the false indication and his general successor, but limited to those who have entered a new interest based on the false indication. Thus, even if the original creditor (A) transferred the retirement allowance claim to the non-party (B), the defendant, who is the debtor of the instant case, can not refuse payment to the plaintiff, who is the true retirement allowance creditor, on the ground that he is a third party in good faith in the above false indication, unless it is proved that the above transfer contract was the false one while he did not pay the retirement allowance to the non-party (B).

Article 108 of the Civil Act

Supreme Court Decision 80Da1403 Delivered on May 25, 1982

Plaintiff

[Defendant-Appellee] Kim Jong-gu, Counsel for defendant-appellee

Seoul High Court Decision 82Na1167 delivered on August 17, 1982

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

With respect to the first and second points:

The judgment of the court below is against the nature of an assignment order and there is an error of law by misunderstanding the legal principles as to the attachment concurrence of illegal and conditional claims which recognize the future bonds or conditional rights as disqualified. However, such reason does not fall under any of the subparagraphs of Article 11(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and it does not constitute a legitimate ground for appeal.

With respect to the third point:

According to the judgment of the court below, the court below concluded that the transfer contract of retirement allowance claim in this case between the non-party 1 and the non-party 2 is null and void as a false declaration of agreement as stated in its judgment. The defendant's assertion that the above transfer contract of this case is null and void as a false declaration of agreement between the above non-party as a contracting party, so it cannot set up against the defendant who is a bona fide third party, and the defendant must pay the above claim to the above non-party 2. Thus, since the plaintiff's claim for retirement allowance in this case cannot be set up as a false declaration of agreement with the above non-party 2, it is stipulated in the law that the plaintiff's claim for retirement allowance in this case cannot be set up against the non-party 2 in good faith as a false declaration of agreement with the above contract is null and void, but the defendant is exempted from the above obligation as the transferee of the above claim in this case, even if it is found that the plaintiff's claim is invalid, the whole assignment order of the above claim in this case's judgment is null and void.

A theory of lawsuit is not acceptable in its independent opinion that the market price of the above original adjudication is in violation of the case of a party member (Article 108 (2) of the Civil Code does not refer to all the person other than the party with false indication and his general successor, and it should be viewed that the third party is limited to the person who has a new interest based on the act of false indication. Therefore, the defendant is justified in the judgment of the court below that the plaintiff cannot refuse to pay the whole retirement allowance claim of this case on the ground that he is a bona fide third party). Ultimately, 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 judges.

Justices O Sung-sung(Presiding Justice)