The trustee in bankruptcy has the status of a third party protected by the proviso of Article 449(2) of the Civil Act.

Since the trustee in bankruptcy has the status of a third party protected by the proviso of Article 449(2) of the Civil Act, the effect of the assignment of claims shall be valid unless the trustee in bankruptcy who is the assignee knows in advance the existence of the non-assignment agreement or fails to know the existence thereof by gross negligence.

Article 449 of the Civil Code, Transferability of Claim

2016Na2049038 Other (money)

1. Korea;

1. BB in bankruptcy of the AA Savings Bank;

November 24, 2016

December 22, 2016

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

On July 4, 2014, the judgment of the first instance is revoked. It is confirmed that the Plaintiff and the Defendant are the Plaintiff with the right to deposit money of KRW 181,921,336 deposited by the Seoul Central District Court No. 14478 on July 4, 2014.

1. Quotation, etc. of judgment in the first instance;

The court's explanation on this case is consistent with the reasoning of the judgment of the court of first instance, except for the modification of the pertinent part of the judgment of the court of first instance as stated in the following 2. Thus, it is citing it as it is in accordance with the main sentence of Article 4

2. Revised parts

(a) Change of Defendant D's three pages to Defendant D's "Co-Defendant D' in the first instance trial";

(b) Change of “Defendant EE” in 3 14 pages to “Co-Defendant EE in the first instance trial”;

(c) To revise “Defendant DD”, which is scattered in the middle between 3 and 5, to “Codefendant DD in the first instance trial,” and “Defendant D” to “Codefendant EE in the first instance trial,” respectively.

(d) eliminate 4 3 to 4 'A savings trustee BB of the A savings bank (hereinafter 'Defendant AA savings bank')'

(e) Change from 4th 9th to 4th e.g. “2. judgment”

(f) eliminate 5 pages “A Savings Bank” of 7 pages;

(g) eliminate the 4 line below the 5th page.

(h) revise 5 up to 7 pages below 3 to 7:

Article 449(2) of the Civil Act provides, “A claim shall not be assigned if the parties have expressed an opposite opinion. However, it shall not be set up against a bona fide third party.” The obligor may set up against a transferee who knows the existence of a special agreement prohibiting the assignment of a claim where a third party has taken over the claim from a creditor, or who was gross negligence when he/she knew the existence of such special agreement. Here, gross negligence means that a third party is not aware of the existence of such special agreement because he/she does not give due attention to the fact that the existence of such special agreement is easily despite the absence of reasonable care required of the ordinary person. A third party’s bad faith or gross negligence shall be set up against the assignee by the special agreement prohibiting the assignment of a claim (see, e.g., Supreme Court Decisions 200Da536, 5343, Jan. 24, 2003; 2010Da8310, May 13, 2010).”

Meanwhile, since all property owned by the bankrupt at the time that the bankrupt is declared bankrupt belongs to the bankruptcy trustee, the bankruptcy trustee has the same status as the general successor of the bankrupt. However, if the bankruptcy is declared, the bankruptcy creditor cannot exercise the bankruptcy claim without resorting to the bankruptcy procedure. Since the bankruptcy trustee performs his/her duties with the care of a good manager for the common interest of the whole bankruptcy creditors, the bankruptcy trustee becomes a third party who has an interest in the property independently from the bankrupt upon the declaration of bankruptcy (see, e.g., Supreme Court Decisions 2002Da48214, Jun. 24, 2003; 2014Da206563, Aug. 20, 2014). The bona fide and bad faith bankruptcy trustee cannot be based on the good faith and bad faith of the individual, and as long as all the bankruptcy creditors do not bona fide, the bankruptcy trustee shall be deemed a bona fide third party (see, e.g., Supreme Court Decision 200Da1964, Apr. 16, 2009).

In this case, the defendant is a trustee in bankruptcy of the AA Savings Bank, and constitutes a so-called third party provided for in the proviso of Article 449(2) of the Civil Act, independent of the AA Savings Bank, and in light of the testimony of RedF by the witness of the first instance trial, it is insufficient to conclude that the whole bankruptcy creditors of the AA Savings Bank merely with the statement No. 1-4, 5, and 6, and the testimony by the witness of the first instance trial and the witness of the first instance trial have gross negligence on the existence of a non-assignment agreement as stipulated in the instant lease agreement or on the failure to know

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the first instance court with the same conclusion is just, and the plaintiff's appeal is dismissed as it is without merit.