[1] The scope of a third party (=a third party with bad faith or gross negligence) who can oppose a special contract prohibiting the assignment of a claim, and who bears the burden of proving the bad faith or gross negligence of the third party (=a person who intends to oppose the assignee by a special contract prohibiting the transfer

[2] The case holding that the above transferee was grossly negligent in knowing, or failing to know, the existence of a special agreement prohibiting the assignment of a claim, in light of various circumstances, such as obtaining a lease contract stipulated in the special agreement prohibiting the transfer of a claim from a lessee of a general hospital room, and obtaining a certification of a deed signed by a private person along with the transfer documents

[3] The meaning of "a fixed date" and "a certificate with no fixed date" under Article 450 of the Civil Code, and whether the third party acquires the opposing power after the notice of transfer of nominative claim was given to the certificate with no fixed date (affirmative)

[4] The case holding that in case where a person who acquired shares from a right holder of a right to claim the return of a lease deposit obtains a certification from an attorney-at-law in charge of notarial services by appending a contract for the change of the lessee's name, which is also the consent of the debtor, the date on which the certificate is written shall constitute a fixed date under Article 3 (4) of the Addenda of the Civil Act to the contract for the change of the lessee'

[1] 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 the special agreement prohibiting the assignment of claim or the assignee who is grossly negligent when he/she was unaware of the existence of such special agreement. The term "serious negligence" as referred to in this context means that, even if he/she did not pay considerable attention to the extent required of ordinary persons, if he/she did not pay little attention to the existence of such special agreement, he/she did not know of the existence of such special agreement. The third party's bad faith or gross negligence must be asserted and proved by the special agreement prohibiting the assignment of claim to the transferee.

[2] The case holding that the above transferee was grossly negligent in knowing, or failing to know, the existence of a special agreement prohibiting the assignment of a claim, in light of various circumstances, such as obtaining a lease contract stipulated in the special agreement prohibiting the transfer of a claim from a lessee of a general hospital room, and obtaining a certification of a deed signed by a private person along with the transfer documents

[3] The transfer of nominative claim cannot be set up against the debtor or any third party without the debtor's consent. This notice and acceptance cannot be set up against the third party, other than the debtor, unless it is based on the document with the fixed date (Article 450 of the Civil Code). The term "fixed date" here refers to the date legally recognized as sufficient evidence as to the date on which the document is prepared and it is impossible for the party to make a change later, and the term "certificate with the fixed date" refers to the certificate with the same date, which is stipulated in Article 3 of the Addenda of the Civil Code (amended by February 22, 1958). The term "certificate with the fixed date" refers to a certificate with the same date, which has no opposing power as to the third party by a certificate with no fixed date, but has obtained the fixed date thereafter, the third party's opposing power after that date.

[4] The case holding that in case where a person who acquired shares from a right holder of a right to claim the return of a lease deposit obtains a certification from an attorney-at-law in charge of notarial services by appending a contract for the change of the lessee's name, which is also the consent of the debtor, the date on which the certificate is written shall constitute a fixed date under Article 3 (4) of the Addenda of the Civil Act to the contract for the change of lessee's name

[1] Article 449(2) of the Civil Act / [2] Article 449(2) of the Civil Act / [3] Article 450 of the Civil Act, Article 3 of the Addenda ( February 22, 1958) / [4] Article 450 of the Civil Act, Article 3(4) of the Addenda ( February 22, 1958) of the Civil Act

[1] Supreme Court Decision 9Da8834 delivered on December 28, 1999 (Gong2000Sang, 362), Supreme Court Decision 2000Da5336, 5343 delivered on January 24, 2003 (Gong2003Sang, 677) / [3] Supreme Court Decision 98Da28879 delivered on October 22, 1998 (Gong198Ha, 2577), Supreme Court Decision 2004Da17481 Delivered on July 8, 2004 / [3] Supreme Court Decision 87Da2429 Delivered on April 12, 198 (Gong1988, 840), Supreme Court Decision 2005Da537645 delivered on September 14, 2006 (Gong198, 840)

Plaintiff (Law Firm Taeyang, Attorneys Lee Don-hun, Counsel for plaintiff-appellant)

Defendant School Foundation (Attorney Kim Dong-jin, Counsel for defendant-appellant)

Seoul High Court Decision 2007Na101723 decided December 23, 2009

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

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

1. As to the third ground for appeal

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 claim or who is gross negligence with the knowledge of the existence of such special agreement, and the gross negligence here means that the existence of such special agreement is not known because he/she did not give due attention to the fact that the existence of such special agreement is easily known if he/she does not exercise considerable care to the extent that it is required by the ordinary person. The bad faith or gross negligence of the third party must be asserted and proved by the person who intends to set up against the transferee with the special agreement prohibiting the assignment of claim (see Supreme Court Decision 200Da5336, 5343, Jan. 24, 2003).

Examining the reasoning of the judgment below in light of the records, the non-party 1 entered into a contract with the defendant on November 1, 2005 on the lease deposit of KRW 2 billion, monthly rent of KRW 22,00,000,000. Article 17 of the lease contract states that "the non-party 1 shall not perform any act such as transfer, sub-lease, sub-lease, entrustment, and offering security to the third party of all rights and obligations under this contract without the defendant's prior approval." On June 28, 2006, the plaintiff acquired the right to return the above lease deposit of this case from the non-party 1 and obtained the above lease deposit of this case from the non-party 1 with the above lease contract document, and the plaintiff was not aware of the fact that the non-party 1 was not aware of the fact that the non-party 1 was not aware of the right to claim the above transfer of this case's lease deposit, and the plaintiff was not aware of the fact that the court below was not aware of the transfer of this case's claim in the form of simple provision.

Nevertheless, the court below determined that the plaintiff's bad faith or gross negligence cannot be inferred on the ground that the lease contract of this case consists of 30 provisions over six pages, is erroneous in the misapprehension of legal principles as to the special agreement prohibiting the assignment of claims. The ground of appeal pointing this out is with merit.

2. As to the grounds of appeal Nos. 1, 2, and 7

This cannot be a legitimate ground of appeal as a new argument in the final appeal.

3. Regarding ground of appeal No. 6

The transfer of a nominative claim shall not be effective against any third party other than the obligor, unless the obligor has notified it to the obligor or without the obligor's consent, and this notification and consent cannot be set up against the obligor without recourse to the obligor or any third party (Article 450 of the Civil Act). Here, it refers to the date legally recognized as complete evidence of the date on which the document in the column for the fixed date is prepared, and the date for which it is impossible for the parties to change the last time is confirmed as impossible, and the term "a certificate with the fixed date" means a certificate with the same date, which is stipulated in Article 3 of the Addenda of the Civil Act, and the third party has no opposing power against the third party by being made by a certificate with no notification of the transfer of nominative claim, but if the certificate has obtained the fixed date thereafter, it shall obtain the opposing power against the third party after that date (see Supreme Court Decision 87Meu2429, Apr. 12, 198)

Upon examining the reasoning of the judgment below in light of the records, as to the transfer documents of equity that Nonparty 1 transferred his share among the lease deposit claims of Nonparty 2 corporation to Nonparty 3, Nonparty 3 as an agent of Nonparty 1 and obtained authentication from the attorney-at-law in charge of authentication on August 1, 2008, and at that time, the contract for change of the lessee’s name entered into between Nonparty 2 corporation and the Defendant was attached to the above transfer documents. Meanwhile, the above contract for change of lessee’s name was also a consent of the Defendant, which is the debtor to the transfer of the right of lease of this case against Nonparty 2 corporation of this case. Accordingly, it is impossible for the parties to change the date later because the above transfer documents attached to the contract for change of lessee’s name were certified, and the date on which the above certificate was entered falls under the fixed date under Article 3(4) of the Addenda of the Civil Act to the contract for change of lessee’s name, which is the attached documents (see Supreme Court Decision 2000Da648274, Aug. 274, 2008).

Nevertheless, the judgment of the court below which rejected the defendant's defense that the non-party 2 corporation's claim acquisition is prior to the plaintiff's claim acquisition by reason that the contract for change of the tenant's name was not subject to the authentication of a deed signed by a notary public under Article 57 of the Notary Public Act, and the judgment below erred by misapprehending the legal principles as to the certificate with the fixed date. The ground of appeal assigning this error

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of 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 Jeon Soo-ahn (Presiding Justice)