채권양도에 대한 이의보류 없는 승낙에 있어서 대항사유의 단절

Abstract

§451 (1) of Korean Civil Code proscribes that if a debtor recognizes a claim assignment without outright objection, then he cannot resist to the assignee with succession of refusal grounds that the debtor originally had with the assignor. The precedents of the Supreme Court of Korea also holds that the debtor in such a case can assert such succession of refusal grounds only to the assignee who had already known the grounds or did not know them with gross negligence. However, as long as the “recognition” in §450 should be interpreted the same word as the “recognition” in §451, the scope of the concept is very wide, and we cannot give a strong effect to a concept with such a wide range of meaning. Therefore, there exists little justifications for the interpretation of the Supreme Court. Also, no Europe countries have such a distinctive treatment for those debtors who recognizes a claim assignment without outright objection. Japanese Court, that has maintained the same criteria as Korea for decades, has recently changed the criteria, which came to enlarge the objection grounds for the debtor. The revised plan for the Civil Code in Japan, which is recently proposed to the Diet, proceeded one step forward, and deletes such a distinction. In addition, we have to take into account the fact that in Korean legal practice gross negligence has very narrow meaning, almost similar to recklessness. To conclude, the criteria of the Supreme Court should be amended in the scope of refusal grounds that a debtor can assert to the assignee.