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대법원 1983. 4. 12. 선고 81다카692 판결
[양수금][집31(2)민,74;공1983.6.1.(705),809]
Main Issues

The burden of proving the fulfillment of the condition in the assignment of claims subject to suspension;

Summary of Judgment

The fact that the condition has been fulfilled in a juristic act subject to a condition precedent is that the person who asserts the effect of the assignment of claims under a condition precedent bears the burden of proof. Therefore, the fact that the condition has been fulfilled in the assignment of claims subject to a condition precedent has the burden of proof.

[Reference Provisions]

Articles 147(1) and 449 of the Civil Act

Plaintiff-Appellee

Seocho Development Co., Ltd. and one other plaintiffs et al., Counsel for defendant-appellee and Kim Yang-nam

Defendant-Appellant

Attorney Hong Sung-sung, Counsel for the defendant-appellant

Judgment of the lower court

Daegu High Court Decision 80Na1204 delivered on July 6, 1981

Text

The judgment of the court below is reversed, and the case is remanded to Daegu High Court.

Reasons

The defendant's attorney's grounds of appeal are examined.

According to the reasoning of the judgment below, the court below found, based on the evidence of the judgment, that the former representative director of the defendant company 1 transferred the claim of 50 million won for short-term loans from time to time to time to the defendant company with operating funds without the agreement on the due date and interest as required by the defendant company and notified the defendant by content-proof mail. The defendant's assertion disputing the validity of the above assignment of claim, that is, the above assignment of claim is the defendant's assertion that the non-party 2 bears a large amount of debt in the course of the transaction with the plaintiff company, and when the default of the issuance check occurred, the non-party 1, the above non-party 3 and the plaintiff company suffered an existing debt against the plaintiff company of the above non-party 2, but the plaintiffs violated the above non-party 2's previous obligation to the non-party 3 with the non-party 2 and the defendant's non-party 2's non-party 2's non-party 2's non-party 2's claim to pay the above amount of claim.

However, in light of the fact that there was a dispute between the plaintiff and the non-party 1 and the non-party 3 as of the time of original adjudication, it is regulated that the non-party 1 maintained the existing transaction relationship between the plaintiff company and the non-party 2 as it is and continued to conduct business with the plaintiff company and the non-party 3, and that the non-party 2 agreed on the assumption of the obligation and the transfer of claims, such as the time of original adjudication, for the purpose of repaying the existing obligations to the non-party 2. Meanwhile, according to the Gap evidence No. 1 which written the contents of the agreement, the non-party 1 decided to transfer the original claim against the defendant company to the non-party 1 to the non-party 3 by the agreement with the plaintiff company as above, the non-party 3 would be able to supplement the existing obligations to the non-party 1 as a result of continuous transaction with the plaintiff company, and the non-party 2's obligation to the non-party 9 is not subject to the non-party 1's obligation to the plaintiff 2.

Therefore, the court below should have deliberated and judged whether the plaintiffs performed the above agreed terms and conditions, and if not, under the burden of proof of the plaintiffs, it should have been responsible for the reason that there is no evidence to acknowledge that the claims were not effective due to the lack of evidence to prove that the claims were not in violation of the agreed terms and conditions, and held that the defendant has the burden of proving the non-performance of the above condition of suspension as if it were the defendant. There is no error of law in the misapprehension of legal principles as to the burden of proof, and this constitutes a violation of law under Article 12 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and therefore, the first ground for appeal pointed out this point is justified.

Therefore, the judgment 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 Yoon Il-young (Presiding Justice)