Seoul Central District Court 2013Na42853 ( October 29, 2014)

The plaintiff's bona fide recognition of the claim prohibited from transfer

The existence of the transferee claim is confirmed solely by the existence of the tax invoice, and there is no bad faith or gross negligence on the part of the Plaintiff, a bank with the first financial right, with no knowledge of the agreement.

Article 449 of the Civil Code, Transferability of Claim

2014Da203083 Confirmation of Claim for Payment of Deposit Money

AAA Bank

Korea

2013Na42853 Confirmation of Claim for Payment of Deposit Money

May 29, 2014

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

Where a third party takes over a claim from a creditor, the debtor may set up against the transferee who is aware of the existence of a special agreement prohibiting the assignment of the claim, or who is grossly negligent in not knowing the existence of such special agreement, and the term "serious negligence" in this context means that, even if it does not pay considerable attention to the extent required of ordinary persons, if the existence of such special agreement is not easily known and if it does not take a little attention, it does not know the existence of such special agreement, and the third party's bad faith or gross negligence must be asserted and proved by the person who intends to set up against the transferee by a special agreement prohibiting the assignment of the claim (see Supreme Court Decision 200Da5336, 343, Jan. 24, 2003).

As stated in its holding, the lower court determined that it is insufficient to recognize that the Plaintiff was grossly negligent in having known the existence of a special agreement prohibiting assignment of claims solely on the ground that the Plaintiff was a financial institution or was negligent in not knowing the existence of a special agreement on prohibition of assignment of claims, in light of the following: (a) the Plaintiff, as a creditor holding multiple claims against the obligor in the insolvency crisis, for satisfaction of claims; and (b) the existence of a claim to acquire claims is confirmed solely by a tax invoice; and (c) the exercise, etc. of a nominative claim subject to assignment in the transaction of nominative Claim does not require the possession and presentation of a certificate of claim (a contract, etc.).

Examining the aforementioned legal principles and records, the lower court’s fact-finding and determination are justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on gross negligence

Therefore, 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 Justices.