If there is a special contract prohibiting transfer in writing, whether the transfer is effective

If the transfer restriction and prior consent provisions in the contract are neglected, it shall be deemed that there was gross negligence. As such, the assignment of claims in this case shall be deemed null and void because not only the violation of the special agreement of the transfer restriction but also the gross negligence.

§ 450. Requirements for setting up against assignment of nominative claim

1. It is confirmed that the Plaintiff and the Defendant 00 persons were entitled to claim for the payment of deposit money of KRW 290,374,280, which was deposited by the Youngcheon District Court was deposited by the Youngcheon District Court No. 67 on February 6, 2007 between the Plaintiff and the Defendant 00 persons.

2. The plaintiff's claim against the defendant 00 agricultural cooperatives and the defendant's Republic of Korea is dismissed, respectively.

3. Of the costs of lawsuit, the costs incurred between the Plaintiff and the Defendant o and the Defendant 1 shall be borne by the Plaintiff, and the costs incurred between the Plaintiff and the Defendant 00 agricultural cooperatives and the Defendant 1, respectively.

Cheong-gu Office

The plaintiff and the defendants confirmed that the non-party corporation, on Feb. 6, 2007, deposited money of 290,374,280 won to the public officials of Youngcheon District Court, Youngcheon District Court's Young Branch's Deposit Deposit Deposit Money of 290,374,280 won deposited in gold No. 67 in 2007.

1. Facts of recognition;

A. On September 6, 2006, Defendant 00 Co., Ltd. (hereinafter referred to as “00 persons”) entered into a contract for the supply of goods (hereinafter referred to as “instant supply contract”) with Nonparty 2 Co., Ltd. (hereinafter referred to as “Sland”) with the content that the Defendant 00 persons would supply the electronic equipment to be installed in Ski ground Contac and ancillary facilities equivalent to KRW 290,924,480 in total in XXland, and agreed on the transfer of the right to claim the payment for that contract as follows.

(1) The counter-party to a contract shall not transfer to a third party any claims arising under this contract, except for the purpose of implementing the manufacture of goods (Article 6 (1)).

(2) Where the other party to a contract intends to transfer his/her claim, he/she shall obtain prior approval from the Gangwon Islands (Article 6 (2)).

(3) Where approval is not granted for reasons not falling under the purpose of performing a contract with respect to a request for written approval on transfer of claims by the counter-party to the contract under the provisions of paragraph (2), a contracting officer shall notify in writing the counter-party to the contract and the person who intends to acquire the relevant claims

B. After that, on September 7, 2006, Defendant 00 entered into a contract with the Plaintiff on the purchase of goods with the intent to purchase 241,301,50 won in total other than part of the electronic goods such as 75 liters, etc. from among the electronic goods to be supplied to XXland pursuant to the supply contract of this case. On September 22, 2006, Defendant 20 transferred the above goods price claim 290,924,480 won to the Plaintiff for the security of payment of the goods under the contract of this case (hereinafter “the claim of this case”). On September 25, 2006, the notice of transfer was served in Grandland with the content certification of the fixed date.

C. Meanwhile, the Plaintiff, through Nonparty 000, prepared in advance to the head of the funding team division of XXland 000 and demanded the submission of the written consent for the transfer of the instant claim with the official seal of the representative director attached thereto. As a result, the Plaintiff was refused to affix a written consent from 000, and the Plaintiff was transferred the instant claim without the written approval under Article 6(2) of the supply contract even though the Plaintiff failed to obtain a clear answer about the possibility of the transfer of the instant claim, and then supplied the instant electronic equipment of KRW 242,177,980 in XXland around November 206.

D. Defendant 00 Agricultural Cooperative (hereinafter referred to as “FFF”) filed an application for the seizure and assignment order of the claim concerning the instant claim with the title of debt assignment order of KRW 860,547,674 with respect to Defendant 00 as the executory payment order of the instant claim of KRW 860,547,674 with respect to the Defendant 00 as the executory payment order of the instant claim of KRW 2006,70 against the Defendant 207 at this court, and as a result, obtained the seizure and assignment order from this court on November 13, 2006, and served the notice of such decision to XXland as the garnishee on the same day.

In addition, on December 14, 2006, Defendant Republic of Korea (the head of the Young District Tax Office) seized the claims of this case with the claims of KRW 3,477,030 against Defendant 0, including corporate tax of KRW 3,477,030, and the notification of the attachment was served in XXland on the same day.

E. On February 6, 2007, inasmuch as there is a special agreement prohibiting transfer under Article 6(1) of the supply contract of this case, she deposited 290,374,280 won remaining after deducting 550,200 won from the credit of this case from Defendant 1 as Defendant 00 and the creditor with respect to the claim of this case, on the ground that the validity of the assignment of claims by Defendant 00 is unclear and the seizure of claims between Defendant 1 agricultural cooperatives and Defendant 1 and Defendant 1 cannot be confirmed due to the competition between the seizure of claims between Defendant 10 and Defendant 1.

2. Claim against Defendant 00 Nonghyup, and Korea

(a) Grounds for claims;

According to the above facts, the plaintiff acquired the claim of this case from the defendant 00 on September 22, 2006 and served the notice of transfer of the fixed date with the notice of transfer of claim to the defendant 00 Nonghyup and the defendant 26th of the same month prior to the seizure of claims in the Republic of Korea, and met the requirements for counterclaim against the debtor and the third party. Thus, the right to claim the payment of the deposit of this case was reverted to the plaintiff.

B. The defendants' defenses, etc.

(1) Whether the instant claim is subject to prohibition of transfer

Defendant 00, Nonghyup, and Korea first asserted that Defendant 00, the other party to the instant supply contract, did not transfer the instant claim except for the purpose of the implementation of the manufacture of goods pursuant to Article 6(1) of the instant supply contract. The assignment of the instant claim did not constitute the purpose of the implementation of the manufacture of goods, thereby violating the special agreement prohibiting the transfer, and even if the Plaintiff, the assignee of the instant claim, knew or was unaware of the existence of the special agreement prohibiting the transfer, it is invalid.

Therefore, with regard to whether the assignment of claims of this case violates the supply contract of this case, the special agreement on the prohibition of transfer as alleged by the Defendants is stipulated in Article 6 (1) of the supply contract of this case, and the assignment of claims of this case cannot be deemed to have been made for the purpose of directly manufacturing and delivering the goods. However, on the other hand, the provision on the assignment of claims for the purpose of "the purpose of performing the contract" as one of the grounds for refusal of written approval under Article 6 (3) of the supply contract of this case, and (2) the special agreement on the prohibition of transfer of this case seems to be prescribed in order to ensure that the defendant 00, who is the contracting party, is faithfully performing the supply obligation under the supply contract of this case. (3) The assignment of claims of this case does not require any other special security to purchase electronic equipment from the plaintiff to perform the supply contract of this case and takes place for the purpose of securing the payment obligation of the goods of this case. Thus, the defendants' assertion that the assignment of claims of this case cannot be interpreted as the above for the purpose of delivery of the above article 60.

(2) With respect to written approval:

The above Defendants also asserted that even though the claim of this case is subject to transfer, the assignment of this case violated the procedural provisions of prior written approval under Article 6 (2) of the supply contract of this case, and that even if the Plaintiff knew of the existence of the provision of written approval or does not do so, it is invalid due to gross negligence.

Therefore, the plaintiff is arguing to the effect that prior written approval is unnecessary in cases where the purport of Article 6 (2) is not subject to transfer in principle, since it means that prior written approval is possible for transfer in cases where transfer is subject to transfer in accordance with Article 6 (1).

Therefore, considering whether prior written approval under Article 6 (2) is required for the assignment of claims of this case, it is first examined whether the prior written approval under Article 6 (2) above is required, and there is no restriction on the subject of written approval under Article 6 (2) above, and the subject of written approval under Article 6 (2) above, as part of the procedure, even in the case of the assignment of claims, such as the assignment of claims of this case, the prior written approval under Article 6 (2) above should be required as part of the procedure. Thus, the plaintiff'

In addition, the Plaintiff asserts that the written approval of XXland is unnecessary since the Plaintiff received the instant claim under the prior understanding of XXland, and fulfilled all procedures such as giving notice of the fixed date to the XXland. However, with respect to the Plaintiff’s transfer of the instant claim under the prior understanding of XXland, there is no other evidence to acknowledge it in addition to the aforementioned witness’s witness’s testimony that the Plaintiff did not believe that the Plaintiff received the instant claim under the prior understanding of XXland, and there is no ground to deem that there is no need to obtain the written approval as stipulated in the instant supply contract, on the ground that the assignment of the claim was notified

Furthermore, according to the validity of the assignment of claims in this case without prior written approval, the assignment of claims for the purpose of performing the contract, such as the special agreement on the prohibition of assignment in this case, but in this case, if the parties agree to obtain prior approval, the meaning of prior approval should be interpreted as the provision on the restriction of transfer (see, e.g., Supreme Court Decision 78Da1237, Jan. 29, 1980). In the case of the restriction of transfer, the restriction of transfer would be a weak restriction rather than the prohibition of transfer. However, in the case of the restriction of transfer, the transfer of claims in this case is limited to the creditor's right by the special agreement according to the so-called in rem effect theory, as in the case of the prohibition of transfer, and it is reasonable to view that the transfer of claims in this case is null and void because the transfer of claims in this case is the transfer of claims whose real right is lost, and the above Defendants, a third party who has interest as the seizure right holder, can claim that the assignment of claims in this case is null and void.

However, pursuant to the proviso of Article 449(2) of the Civil Act, it cannot be set up against a bona fide third party by a special contract for prohibition or restriction of transfer, and the burden of proving the existence of the prohibition or special agreement and the bad faith of the third party is to be set up against the person who intends to set up the special agreement. Thus, the above Defendants’ assertion as to this part is groundless, since there is no clear evidence to acknowledge the existence of the limitation of the assignment of claims, which is the assignee of the claim in this case.

However, Article 449(2) of the Civil Act provides that a special contract prohibiting the assignment of claims cannot be set up against a bona fide third party, and it does not see the existence of a third party’s negligence. However, since a third party’s gross negligence should be treated as a bad faith, it is reasonable to interpret that a claim cannot be acquired by transfer as the assignee in bad faith if there is gross negligence when the transferee of the claim was unaware of the existence of the special contract without knowing the existence thereof (see Supreme Court Decision 96Da18281, Jun. 28, 1996). The gross negligence in this context means that the existence of the special contract is not known even if it is not due to considerable attention required for ordinary persons even if it is not known that there is a special contract, and it is reasonable to consider whether there is a special contract being delivered, whether the certificate of claim is delivered, whether the special contract is significantly prohibited or limited to the transferee, and whether there is experience in the transaction with the transferee.

As to the instant case, the following circumstances are acknowledged by the evidence adopted earlier, i.e., ① the supply contract of this case was entered in the form of a standardized contract under the title of the general condition of the purchase contract of this case, and the provision on the restriction of transfer of this case is included in its contents, and the claim is issued to the Plaintiff. ② The Plaintiff operated the legal team composed of the legal experts as a large enterprise in the domestic area, and the transaction of the assignment of this case cannot be deemed to have much experience in the transaction of the assignment of claims. After reviewing the instant contract at the time of the transfer of the assignment of this case, the Plaintiff prepared to prepare the instant contract at the time of the transfer of the assignment of this case and then requested documents to the seal of the representative director of Grandland. ③ In order to secure the faithful performance of the contract of the contracting party, the existence of the special agreement on the prohibition or restriction of transfer as to the instant case cannot be deemed to have been known in the transaction, ④ The claim amount of this case is relatively large to 30 million won, even if the Plaintiff did not know the existence of the transfer of the instant special agreement.

Therefore, the assignment of claims in this case is null and void as long as the plaintiff did not know the existence of a special agreement on transfer restriction as well as the violation of a special agreement on transfer restriction by gross negligence. Therefore, the above defendants' assertion on this part is justified.

C. Sub-committee

Thus, the plaintiff's claim against the above defendants under the premise that the plaintiff had been effectively transferred the claim of this case from the defendant 00 persons is eventually groundless.

3. Demand against the defendant 00 persons: (Omission)

4. Conclusion

Thus, between the plaintiff and the defendant 00 persons, the right to claim payment of deposit money of 290,374,280 won deposited by the Switzerland District Court Young-gu 67 on Feb. 6, 2007 to the public official in charge of the monthly branch of the Chuncheon District Court on Feb. 6, 2007 shall belong to the plaintiff. Although the defendant 00 did not dispute the facts of the plaintiff's cause of claim, there is a benefit to seek confirmation against the same defendant as long as the defendant 00 did not dispute the facts of the plaintiff's claim, but the plaintiff's claim against the defendant 00 is justified, and all claims against the plaintiff 0 and the defendant 00 are dismissed for lack of reason. It is so decided as per Disposition.