장래채권양도와 채권양도금지특약

Abstract

In this article, the author examines if the assignment of future claims is effective when the debtor and the creditor enter into a non-assignment agreement after the creditor(assignor) and the assignee have assigned the future claims. There is a gap in the written-law regarding this issue. Therefore, judges who cannot refuse to decide for a lack of applicable norms, have no choice but to resolve it through their own law-making. At the heart of this issue, there are two opposing ideas; whether to respect the freedom of the contracting parties (the debtor and the creditor) to determine the contents of the contract, under the premise that the non-assignability of receivables is a kind of the contents of their contract, or to improve the assignability of receivables by focusing on the aspect that receivables are objects of disposal and trade. However, there exists no single right answer in a logical, doctrinal sense as to which idea is correct. The Korean Civil Code contains both perspectives. In this situation, we should seek a more practical solution, even if it is not entirely satisfactory, by considering various balancing topics on a comprehensive and inductive basis (topic theory). In considering the balancing topics in written-law, legal principles or policy, and comparative law, the following conclusion is desirable; the assignment of future claims is effective unless the transferee, at the time of transfer of future claims, could clearly anticipate that a non-assignment agreement would be concluded in the future. Such foreseeability must be proven by the debtor who claims that the transfer of future claim is invalid. In terms of legislation, the author suggests a two-tier approach (absolute validity + absolute nullity); with monetary claims arising from commercial trade, the assignment of receivables is valid irrespective of a non-assignment clause and regardless of an assignee’s knowledge of a non-assignment clause (absolute validity). With other claims, the current system under Article 449, Paragraph 2 of the Korean Civil Code is maintained. An anti-assignment agreement between creditor and debtor provides an absolute effect not only between them but also with others, especially assignees (absolute nullity), except when an assignee, without gross negligence, is unaware of the anti-assignment agreement. In the former case (absolute validity), the assignment of future receivables is also absolutely effective, even if the debtor and the creditor enter into an anti-assignment agreement after the transfer of future receivables. In the latter case (absolute nullity), it seems desirable that the assignment of future receivables always becomes absolutely invalid, when the debtor and the creditor enter into an anti-assignment agreement after the transfer of future receivables. In the area of ​​absolute nullity, the principle of freedom of contract should be emphasized, because we have already strengthened the assignability of receivables and removed the hurdles in financial transactions by recognizing the area of ​​absolute validity.