Where there is gross negligence on the part of the transferee of the claim who was unaware of the existence of a special agreement prohibiting transfer, the validity of the transfer of claim (negative)

Article 449(2) of the Civil Act provides that the special agreement prohibiting the assignment of claims cannot be set up against a bona fide third party, and the text does not see the existence of the fault of the third party. However, the gross negligence of the third party is treated as bad faith. Therefore, it is reasonable to interpret that the claim cannot be acquired by transfer as bad faith if, in the case of the acquisition of the claim without knowledge of the existence of the special agreement prohibiting the transfer, there is gross negligence of the third party in the absence of such knowledge.

Article 49(2) of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff

Mayang Tourist Hotel Co., Ltd.

Daegu High Court Decision 95Na2181 delivered on March 22, 1996

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. On the first ground for appeal

A. According to the reasoning of the judgment below, as long as the non-party company's alternative facilities (hereinafter the non-party company) were not known to the defendant on July 9, 1993 by internal evidence, the court below rejected the defendant's claim that the non-party company would not transfer the above construction work to the non-party company or the non-party company's non-party company's non-party company and the non-party company's non-party company's non-party company's non-party company's non-party company's non-party facilities construction work cost amounting to 680,00,00 won among hotel facilities construction work cost to be newly constructed on the north-west ( Address omitted) and the non-party company's non-party company's non-party corporation's non-party facilities construction contract cannot be concluded for the purpose of collateral transfer or the non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party business's non-party's non-party 4's non-party company's non-party contract's non-party.

B. However, Article 449(2) of the Civil Act provides that a special agreement on the prohibition of assignment of claims cannot be set up against a bona fide third party; however, it is reasonable to interpret that a third party's gross negligence should be treated as the same with bad faith, so if there is gross negligence in the acquisition of claims without knowing the existence of a special agreement on the prohibition of transfer, and if there is gross negligence in the acquisition of claims without knowing the existence of such special agreement, the claim cannot be acquired by transfer as the assignee in bad faith. Accordingly, the court below rejected the defendant's assertion to the effect that even if the transferee of claims did not know the special agreement on the prohibition of transfer of claims, even if he did not know the special agreement on the prohibition of transfer of claims, the special agreement on the prohibition of assignment of claims cannot be set up against the assignee even if he did not know the special agreement on the prohibition of transfer of claims. However, according to the records, since the plaintiff could not find any material to recognize that there was gross negligence between the non-party company and the defendant at the time of the acquisition of claims, the above argument by the defendant cannot be dismissed.

2. On the second ground for appeal

The court below rejected all the evidence of the defendant's assertion that the non-party company did not complete the construction work of this case and the contract amount to be paid by the defendant was paid in full, and that there was no amount to be paid by the non-party company by the ratio of the base price upon termination of the contract, and therefore there was no amount to be paid by the defendant to the non-party company. The non-party company has a claim for the construction cost equivalent to 125,600,000 won against the defendant, based on the evidence so paid, and the defendant has a duty to pay it to the transferee of the claim for the construction cost within the scope of the above construction cost. In light of the records, the court below's determination of evidence preparation and fact is reasonable, and there was no error of law of misconceptioning facts against the rules of evidence or contrary to the allegations in the grounds of appeal. The ground of appeal is without merit since the judgment of the court below is merely erroneous on the premise that the judgment of the court below is inconsistent with the facts and facts acknowledged by the court below.

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)