Seoul Central District Court 201Kadan187065 ( November 10, 2011)

Even if gross negligence is grossly negligent in not knowing the prohibition against the assignment of claims, such prohibition may be asserted against the assignment of claims.

The prohibition of the assignment of claims by declaration of intention by the party concerned can be set up against the prohibition of the assignment of claims even in cases where a third party is grossly negligent not only in bad faith but also in cases where the third party is not aware of the prohibition of the assignment of claims, but also in cases where there is gross negligence on the part of the third party, but also in cases where the existence of the certificate of claim as stipulated in the

2011Na59109 Confirmation of Claim for Payment of Deposit

XX

Korea

Seoul Central District Court Decision 201Da187065 Decided November 10, 2011

April 5, 2012

April 26, 2012

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

Nonparty XX Co., Ltd. confirmed on April 12, 201 that the right to claim payment of deposit money of KRW 000 deposited by the Seoul Western District Court Decision 2122 in 201 is the Plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

A. On February 5, 2011, the Plaintiff received a lease deposit claim of KRW 000 from OE Co., Ltd. (hereinafter “OE”) from OE Co., Ltd. (hereinafter “OE”) (hereinafter “instant lease deposit claim”). On February 10, 2011, OE Korea notified it to XX Co., Ltd.

B. The △△ Design Co., Ltd. was decided to seize and collect the claim for the refund of the lease deposit in this case by Seoul Western District Court 201TTT 3634, and the said decision was served to XX Co., Ltd. around February 28, 2011.

C. On March 16, 2011, the Defendant seized the claim for the refund of the instant lease deposit by OE Korea, as OE Korea did not pay 000 won of national taxes.

D. XX Co., Ltd. deposited KRW 000 of the lease deposit remaining after being entered as the assignment of claim, seizure, seizure, and collection order under the Seoul Western District Court Decision 2122 dated April 12, 201 as the Plaintiff and OO Korea Co., Ltd., and the deposit cause of deposit under the Seoul Western District Court Decision 2122 dated 201.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 5, purport of whole pleadings

2. Determination as to the cause of action

According to the facts established above, △△ Design Co., Ltd. and the Plaintiff who was legally transferred prior to the seizure of the right to refund the lease deposit of this case by the Defendant shall have the right to withdraw the deposit for the lease deposit deposited by the XX Co., Ltd., and as long as the Defendant contests this, there is a benefit to seek

3. Judgment on the defendant's defense

According to the lease agreement between OE and PS Co., Ltd., the Defendant is prohibited from transferring the right under the above contract to a third party without the lessor’s prior consent. This is a special agreement prohibiting the transfer of the right to return the lease deposit of this case. However, the Plaintiff, even if he knew or was unaware of the existence of the special agreement prohibiting the transfer of the right at the time of the transfer of the right, was gross negligence, and thus, the agreement between the Plaintiff and OE Korea is invalid.

However, the prohibition of the assignment of claims by a party’s expression of intent may be asserted against the assignee by the prohibition of the assignment of claims even in cases where a third party is grossly negligent not only in bad faith but also in cases where the third party is not aware of the prohibition of the assignment of claims. However, gross negligence in this context refers to the absence of knowledge of the existence of a special agreement as it is difficult to easily exercise due care, if the existence of such special agreement is not known even though it is not considerable attention to the extent that the ordinary person demands, and a third party’s bad faith or gross negligence must be asserted and proved by a person who intends to oppose the assignee by the special agreement prohibiting the assignment of claims (see, e.g., Supreme Court Decision 9Da8834, Dec. 28, 199).

Even though there was a special agreement prohibiting the transfer of the claim for the return of the lease deposit in this case as the defendant's argument, in light of the fact that the possession and presentation of the certificate of the claim is not essential in the exercise of the nominative claim subject to transfer in the transaction of nominative claim, and that even if the certificate of claim is received and delivered, it is hard to find out the existence of the special agreement simply because the certificate of claim as stipulated in the special agreement prohibiting transfer in this case was delivered from the transferor to the transferee, and the transferee could easily find the existence and contents of the special agreement because the special agreement was entered in a simple form that can be easily identified, the existence of the certificate of claim prohibition cannot immediately be inferred solely on the ground of the existence of the certificate of claim prohibition and the fact that the transferee of the special agreement was a large amount of claims for the return of the lease deposit in this case or that the plaintiff had been a real estate brokerage business for a long time (the plaintiff's real estate brokerage business cannot be viewed as the plaintiff's main business after the creation of the lease contract in this case).

Therefore, the defendant's defense is without merit.

4. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.