In case where a transferee of a claim has made a judicial claim against the debtor without meeting the requisite for setting up against the assignment of claim, whether it constitutes a judicial claim which is the ground for interrupting extinctive prescription (affirmative

The assignment of a claim refers to a contract that aims to transfer a claim between the former creditor, the transferor and the new creditor, while maintaining its identity to the latter, and the claim by the assignment of a claim is transferred from the transferor without losing its identity to the latter, and such legal doctrine also applies even if the transferee fails to meet the requisite for setting up against the assignment of the claim, and even if the obligation fails to meet the requirement for setting up against the assignee, the right and obligation which is not fulfilled the condition may be disposed, inherited, preserved, or secured in accordance with the general rules, and Article 149 of the Civil Act can be applied mutatis mutandis to the case of the transferee of the claim by the assignment of the claim, even if the obligor fails to satisfy the requisite for setting up against the obligor, and the transferee of the claim by judicial proceedings against the obligor cannot be seen as a "person locked on the right."

Articles 168 and 450 of the Civil Act

Supreme Court Decision 2001Da59033 Decided April 26, 2002 (Gong2002Sang, 1256) Supreme Court Decision 2004Da3673, 3680 Decided April 28, 2004

Han light-emitting Specialized Company

Korean LIBD Specialized Company

A.O.N.D. (Law Firm Feng, Attorney Kim Awarding-hoon, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Park Byung-hee et al., Counsel for the defendant-appellant-appellee)

Seoul High Court Decision 2004Na55829 delivered on June 28, 2005

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

1. The judgment of the court below

The court below rejected the plaintiff 2's final claim for the cancellation of the claim by the plaintiff 20-2 (the plaintiff 2) against the plaintiff 2,012,056,673, including the loans secured by the junior mortgage 2 and the right incidental thereto (hereinafter referred to as "claims"), since the plaintiff 2, 200-2, which had been declared as the plaintiff 2's final claim for the cancellation of the damage claim by the plaintiff 20-2 (the plaintiff 2,000-2, the plaintiff 2, and the plaintiff 2, who had been declared as the plaintiff 2's final claim for the cancellation of the damage claim by the plaintiff 20-5 (the plaintiff 2,000-2, the plaintiff 2, the plaintiff 2, and the plaintiff 2, who succeeded to the plaintiff 2, was not entitled to the plaintiff 2's final claim for the cancellation of the damage claim by the plaintiff 1, 200-2, and the plaintiff 2, the plaintiff 2, who succeeded to the right of this case.

2. The judgment of this Court

The assignment of a claim refers to a contract between the former creditor, the transferor and the new creditor, which aims to transfer the claim from the former to the latter, while maintaining its identity. The claim by the assignment of a claim does not lose its identity and is transferred from the transferor to the assignee (see Supreme Court Decision 2001Da59033, Apr. 26, 2002). This legal doctrine applies even if the transferee fails to meet the requisite for setting up against the assignment of claim, and Article 149 of the Civil Act provides that "the rights and obligations which have failed to meet the requirements for setting up against the obligor may be disposed, inherited, preserved, or secured in accordance with the general rules and regulations." Even if the transferee fails to meet the requirements for setting up against the obligor, it can be applied mutatis mutandis as they are to the case of the transferee of the claim that has been transferred by the assignment of a claim, and even if it cannot be viewed as the transferee of the claim that has filed a judicial claim against the debtor, if the transferee files a judicial claim against the obligor, it shall be deemed as the ground for interruption of extinctive prescription.

The judgment of the court below that the extinctive prescription shall not be interrupted even if the assignee of a claim, who is unable to oppose the obligor, files a lawsuit against the obligor, is erroneous in the misapprehension of legal principles as to the validity of the assignment of claim or the grounds for suspending the extinctive prescription, and such errors have affected the conclusion of the judgment.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jae-sik (Presiding Justice)