[1] In a case where a debtor transfers another claim to a creditor in relation to the repayment of a debt, whether the original claim can be deemed extinguished if the assignment of claim is made (negative in principle)

[2] In a case where a debtor agreed to transfer another claim to the creditor in repayment of his/her obligation, whether the original obligation is extinguished if a substitute payment is made by satisfying the requirements for the assignment of obligation (affirmative in principle), and whether the transferor who transferred the claim as a substitute payment guarantees the debtor’s ability to perform the obligation (negative in principle)

[1] It is not reasonable to presume that a debtor transfers another claim to a creditor in relation to the repayment of obligation by means of a security for repayment of obligation or a repayment, barring special circumstances, barring any special circumstance, it is not deemed that the assignment of obligation does not immediately terminate if it is transferred, and the debtor is exempted from liability within the extent of the transfer when the creditor receives the repayment of the assigned claim.

[2] In a case where a debtor has agreed to transfer another claim to the creditor in the repayment of his/her obligation, barring any special circumstance, barring any special circumstance, the original obligation is extinguished by satisfying the requirements for the transfer of obligation, and the repayment of the obligation that he/she acquired is to be made, but the original obligation is not extinguished. In such a case, as to the existence of a claim subject to the transfer at the time of the transfer, the transferor who transferred his/her obligation as a substitute payment, does not guarantee the obligor’s ability to perform the obligation, unless there is

[1] Articles 449, 460, 461, and 466 of the Civil Act / [2] Articles 449, 450, 460, 461, and 466 of the Civil Act

[1] Supreme Court Decision 95Da16660 delivered on December 22, 1995 (Gong1996Sang, 493)

Loenc Co., Ltd. (Attorneys Cho Young-do et al., Counsel for the defendant-appellant)

ASEAN General Construction Co., Ltd. (Attorney Han-won, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Na51856 decided April 12, 2012

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. An obligor’s transfer of another claim in relation to the repayment of obligation to a creditor is presumed to have been transferred by means of a security for repayment of obligation or a repayment, barring special circumstances, and in such case, it does not mean that the assignment of claim is not immediately extinguished if the assignment of claim is made, and the obligor shall be exempted from liability within the scope of the obligor’s performance only when the obligee receives the assignment of claim (see, e.g., Supreme Court Decision 95Da1660, Dec. 22, 1995). On the other hand, in a case where the obligor agreed to transfer another claim in relation to the repayment of obligation, barring special circumstances, by satisfying the requirements of the assignment of claim, the original obligation ceases to exist and the original obligation is not extinguished, unless there is a separate agreement between the obligor and the obligor on the existence of the claim subject to the transfer at the time of the transfer. In such a case, the transferor as a substitute payment does not guarantee the obligor’s performance, unless there is a separate agreement between the obligor and the obligor.

2. According to the reasoning of the lower judgment and the evidence adopted by the lower court, the following facts are revealed. In other words, the Defendant entered into a contract for the transfer and takeover of claims (hereinafter “instant contract for the transfer and takeover of claims”) on October 27, 2009 with respect to the construction cost claim held by the KDB, Inc., Ltd., the ordering person of the instant construction project (hereinafter “KDB”), and notified the Plaintiff of the transfer thereof on the same day. However, Article 5(5) of the instant contract for the transfer and takeover of claims of this case provides that the transferor shall be paid to the assignee based on the date of the transfer and takeover of claims, and the transferee shall not demand all of the claims to the transferor, and Paragraph (7) provides that the transferor shall not have any defect in rights, such as provisional seizure and seizure, and that the transferor shall not have any opposing claim set-off, and that the transferor shall not have any obligation to transfer and take over claims in a way other than the obligor’s total amount of obligation to the transferee.

Based on the above terms and conditions, the court below, based on its stated reasoning, interpreted paragraphs (5) and (7) of the contract on the transfer and takeover of claims in this case harmoniously on the grounds of its stated reasoning, based on the premise that the contract on the transfer and takeover of claims in this case is a substitute for the payment of claims to the defendant pursuant to paragraph (5). However, where the plaintiff significantly less than the amount of the construction cost recovered from KR press, the contract on the transfer and takeover of claims in this case is a substitute for the plaintiff's claim for the payment of the construction cost in this case, and on the premise that the plaintiff's claim for the payment in this case is a substitute for the cancellation of the contract on the part of the defendant's claim for the payment in this case. The payment in this case assumes that the parties expressed their intent to pay in lieu of the original obligation in lieu of the debtor's performance in lieu of the original obligation in this case, and the original obligation is extinguished. In fact, there is no evidence that

3. However, in light of the legal principles as seen earlier, it is difficult to accept the above judgment of the court below.

First, in a case where the payment of a certain obligation is to be made in substitution for another obligation, barring any special circumstance, the original obligation would be extinguished if the substitute payment is made, and the performance of the obligation is to be made in substitution for another obligation, and the obligation of the assignee shall not be extinguished if the substitute payment is to be made. If, however, the obligation of the assignee is to be performed even if the original obligation is to be extinguished, the intent of the parties would rather be deemed to have been transferred by means of a security or repayment for the repayment of the original obligation, rather than by transferring the obligation in substitution for the repayment of the other obligation.

However, according to the records, at the time of entering into the instant claim transfer and takeover contract, multiple creditors, other than the Plaintiff, who received the subcontract from the Defendant, entered into an agreement with the same content as the instant claim transfer and takeover contract, and their creditors acquired the Defendant’s claim for the instant claim for the instant claim transfer and takeover. Considering this, there was considerable concern as to whether the subcontractor’s claim for the instant claim transfer and takeover would be able to be actually repaid from the KR press which is the ordering person, and considering this, there was also circumstances such as the extinguishment of the claim for the subcontract payment against the Defendant, and the subsequent addition of Paragraph (7) as the reservation to the effect that “the assignee does not demand any and all the claims to the transferor.” Therefore, the lower court should have determined that the instant claim transfer and takeover contract was not substituted by the surface statement, but by the purpose or method of security or reimbursement, rather than by the purpose or method of the instant claim transfer and takeover contract.

In addition, in order to interpret the claim transfer and takeover contract of this case as a condition subsequent to the execution of accord and satisfaction, and as stated in the judgment of the court below, it is possible to acknowledge special circumstances, such as where the text of the agreement itself is so doing or where such special agreement is made in light of the situation before and after the agreement. However, in light of the language and text of Paragraph (7) of the claim transfer and takeover contract of this case, even if a claim against the Defendant’s KD press, which is a claim subject to transfer, exists in a prior provisional attachment or seizure or offset, it remains as much as the Plaintiff’s claim against the Defendant exists, i.e., guaranteeing the existence of a claim for transfer, and it does not mean that the purport of guaranteeing the Defendant’s financial capability, which is the debtor of the claim subject to transfer, is to guarantee the obligor of the claim subject to transfer, even if there is a claim against the obligor in a prior attachment or seizure, the purport of guaranteeing the obligor’s financial capability. Therefore, in order to recognize the claim transfer and takeover contract of this case as a condition subsequent to the obligor’s ability.

Nevertheless, the lower court did not exhaust all necessary deliberations on the factual relations, etc. necessary for rendering the above judgment, and concluded that the instant bonds transfer and takeover contract is an accord and satisfaction under the condition of rescission that the actual repayment of the said bonds is insufficient, and without clearly stating whether such cancellation condition is met, and determined that the instant bonds transfer and takeover contract was invalidated due to the fulfillment of the condition of rescission. In so doing, it erred by misapprehending the interpretation of the instant bonds transfer and takeover contract or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

4. Accordingly, without further proceeding to decide on the remainder of the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent

Justices Kim Chang-suk (Presiding Justice)