채권양도통지인으로서의 양도인과 그 무현명대리 - 대법원 2011. 2. 24. 선고 2010다96911 판결 -

Abstract

Article 450 of Korean Civil Code prescribes that the assigner should give notice of assignment of claim to obligor. Therefore the assignee cannot give the notice in his own name, neither on the basis of obligee's right of subrogation to obligor, It is said generally that this article about the informer of Assignment has a purpose to protecte assigner and obligor, preventing from false assignment. However, the notice of assignment is a requisite for setting up assignment of claim, and has a purpose to protect the assignee. Without the notice the assignee cannot ask the performance to the obligor. In these senses the assignee has the greatest interest in the assignment of claim. So it is not reasonable that Article 450 of Korean Civil Code limits the informer as an assigner. The assigner who has disposed his claim does not have a greatest interest in the assignment of claim. Limiting the informer as an assigner does not make always a false assignment, The legal quality of the notice of the assignment is recognized as notice of fact, it does not matter who gives notice of assignment. The articles of modern civil codes generally does not limits the informer as an assigner, and several korean special codes regulate assignee as informer of assignment. Therefore Article 450 of Korean Civil Code which limits the informer as an assigner should be amended, and, before amending the article, it should be reasonably interpreted. Meanwhile provisions concerning the juristic act like agency could be applied analogically to the gescheftsehnliche Handlung(quasi-juristic act) like notice of fact, The notice of assignment is a notice of fact. A declaration of intention made by an agent without disclosing agency could be valid, if the other party was aware, or should have been aware, that it was made on behalf of the principal. So does the notice of assignment as a gescheftsehnliche Handlung. On the basis of the principle of interpretation of a juristic act and for complementing Article 450 of Korean Civil Code, if there was a contract of assignment between assigner and assignee, and even if the latter gave the former a certificate of assignment, it should admit the validity of the notice of assignment by the assignee. Because of these reasons, the judgment for review that Article 450 of the Civil Code should be strictly enforced is not justifiable.