In cases where a transferor of future claims receives money from an obligor by collecting claims before the assignment of claims is notified, whether ownership of the money belongs between the transferor and the transferee (=assignor) and the transferor is in the position of keeping the money in custody for the transferee (affirmative)

Article 355 of the Criminal Act

Supreme Court en banc Decision 97Do666 delivered on April 15, 1999 (Gong199Sang, 978)

Defendant

Defendant

Law Firm Uniform, Attorneys Ha-ok et al.

Seoul High Court Decision 2006No893 decided July 7, 2006

The appeal is dismissed.

The grounds of appeal are examined.

The purpose of the assignment of claims is to treat claims as one goods and immediately transfer them from the transferor to the transferee without losing their identity. In this case, the transferee obtains the status of obligee and obtains repayment of claims effective from the obligor. Since the Civil Act requires notification of the transfer to the obligor and the consent of the obligor as a requisite for setting up against the obligor, and grants only the transferor the ability of notification to the obligor, the transferor bears the duty to enable the assignee to satisfy the requisite for setting up against the obligor by obtaining notification of the transfer of claims or obtaining consent of the obligor. The transferor bears the obligation to double transfer of claims to the obligor before giving notification of the transfer of claims to the obligor, and if it is impossible for the assignee to set up such requirement for setting up against the obligor by giving notification of the transfer of claims to the assignee, the transferee cannot achieve the purpose of the assignment. Thus, the transferor’s obligation to collect claims is included in the transferor’s duty to satisfy the requirements for setting up against the assignee, as a matter of course, in order to preserve the assignee’s obligation to be effective and effective between the transferor and the assignee.

According to the reasoning of the judgment below, the court below determined that the contract for the transfer and acquisition of service deposit between the defendant and the victim constitutes an effective assignment of claims, and therefore, the defendant has a relationship of keeping service deposit received by the defendant for the victim. In light of the above legal principles and records, the above measures of the court below are justified, and there is no error in the misapprehension of legal principles as to the elements of embezzlement.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)