[1] Where the consent of an obligee is required to take effect in order to take effect, the standard for determining the nature of the assumption of an obligation (i.e., an exemption from liability)

[2] Whether the validity of the assumption of an obligation is effective where a creditor who refuses to accept the acceptance after the acceptance is made again (negative)

[1] If the consent of an obligee is required to take effect in order to assume the obligation, it is limited to the case of the assumption of the obligation with discharge, and if the assumption of the obligation is overlapped, it is a matter of interpretation of the intention of the parties indicated in the assumption of the obligation.

[2] Where the assumption of an obligation takes effect with the consent of the creditor, if the creditor refuses the consent, then the effect shall not take effect as the assumption of an obligation even if the creditor refuses the consent again.

[1] Articles 453 and 454 of the Civil Act / [2] Articles 453 and 454 of the Civil Act

[1] Supreme Court Decision 87Da3104 delivered on May 24, 198 (Gong1988, 987), Supreme Court Decision 96Da5471 delivered on July 8, 1997, Supreme Court Decision 97Da52493 delivered on March 13, 1998 (Gong198Sang, 1037)

Plaintiff (Attorney Lee In-bok, Counsel for plaintiff-appellant)

Defendant (Dongdong General Law Firm, Attorneys Song Sung-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Na58356 delivered on June 11, 1998

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

The court below held on October 13, 1993 that the plaintiff completed the registration of creation of a mortgage over the maximum debt amount of 500 million won with respect to the non-party company Jungwon-gun ( Address 1 omitted) and 661 square meters ( Address 2 omitted) and 949 square meters (hereinafter "site in this case"). The non-party company constructed a new building of the first and fifth floors above the ground of appeal on the site in this case on May 3, 1994, under the condition of 431,148,00 won and 65 percent as the financial resources are not good, and the defendant purchased the debt of the non-party company against the plaintiff in this case within the limit of 350,000,000 won, and the non-party company refused to accept the debt of the non-party company within the limit of 90,000 won and paid the debt amount to the non-party company as it is. The defendant did not err by misapprehending the legal principles as to the non-party company's 9.5 billion won.

In addition, it is an issue of interpretation of the intention of the parties that is indicated in the contract of debt acquisition if the consent of the creditor is required to take effect in order to take effect. The defendant takes over only the amount of KRW 350 million out of the debt owed to the plaintiff of the non-party company and bears the remainder as it is by the non-party company. Accordingly, the defendant requested the plaintiff to cancel the right to collateral security established on the site of this case with the payment of KRW 350 million to the plaintiff, and upon the plaintiff's application for auction by the execution of the right to collateral security, the non-party company notifies the defendant that the debt acquisition agreement is reversed on July 30, 1995 on the ground that the realization of the right to collateral security is impossible, and on the contrary, the defendant and the non-party company take over the amount of KRW 350 million out of the debt owed to the plaintiff of the non-party company and agreed to assume the obligation of the non-party company with the plaintiff's consent.

Therefore, contrary to the allegations in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the assumption of overlapping obligation or by omitting judgment.

Furthermore, where the assumption of an obligation takes effect with the consent of the creditor, if the creditor refuses the consent, then the creditor does not take effect as the assumption of an obligation even if the consent is given again. Thus, if the non-party company cancels the assumption of an obligation after the plaintiff refused the consent and became final to have no effect on the assumption of an obligation, then the cancellation shall not affect the validity of the assumption of an obligation, and thus, it shall not affect the judgment.

In addition, as long as the court below decided that the plaintiff refused to accept the assumption of obligation, it is rejected the plaintiff's assertion that the plaintiff impliedly accepted the assumption of obligation, and there is no error in the misapprehension of the legal principles as to implied acceptance of the assumption of obligation, as otherwise alleged in the grounds of appeal. Therefore, all of the grounds of appeal are rejected.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)