Whether a person who has acquired claims pursuant to an asset-backed securitization plan may set up against the obligor, where the transferee has notified of transfer to the obligor (affirmative)

Article 7 of the Asset-Backed Securitization Act

Plaintiff Co., Ltd. (Law Firm Hanwon, Attorneys Jeong Sung-won et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other

Seoul Central District Court Decision 2008Na2646 Decided July 8, 2008

The judgment below is reversed, and the case is remanded to Seoul Central District Court Panel Division.

The grounds of appeal are examined.

Article 7 of the Asset-Backed Securitization Act provides for exceptions to Article 450 of the Civil Act concerning the requirements for setting up against the designated transfer of claims in order to minimize the time costs of the asset-backed securitization. In the event that a claim is transferred pursuant to the asset-backed securitization plan, a notice of transfer to the debtor may be set up against the debtor not only by the transferor of the claim but also by the transferee of the claim (see Article

According to the reasoning of the judgment below, the court below rejected the plaintiff's claim on the ground that the notification of the transfer made on December 28, 2007 with respect to the claim of this case was made by the transferee of the claim who is not the transferor of the claim (Korea Light Bank), and it is invalid.

However, in light of the aforementioned legal principles, the court below erred by neglecting the notification of the transfer of the instant claim to the court below after further examining whether the transfer of the instant claim was made in accordance with the asset-backed securitization plan, and by exceeding the bounds of Article 7(1) of the Asset-Backed Securitization Act, which affected the conclusion of the judgment. The ground of appeal assigning this error has merit.

Therefore, the judgment of the court below is reversed, and the case is 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 on the bench.

Justices Yang Chang-soo (Presiding Justice)