일본민법개정법안상의 채권양도규정

Abstract

In Japan, a bill aiming to revise the Law of Obligations drastically centering on contracts has been submitted to the Congress on March 2015. This article shall introduce the part regarding assignment within the bill. Since current Japanese and Korean Civil Codes are very similar in terms of clauses stipulating assignment, the bill might be referable for the amendment of the Korean Civil Code in the near future. The revised provisions that are important in assignment are the following four; ① the effects of the limitation of assignability clause ② future assignment, ③ consent without reservation and ④ assignment and set-off. 1. In the aspect of promoting the liquidity, the revised bill decided not to adopt the majority opinion of absolute effect in interpreting limitation of assignability clauses, so that the assignment of a claim is in effect despite the existence of such clause. 2. Formerly established court precedents were given a more concrete form on future assignments to the extent that the bill stipulated future assignments are possible and the assignee acquires the rights to the claim as soon as the claim becomes effective without any other requirement or procedure. 3. The revised bill removed the clause that gave special legal effect to the obligor's consent without reservation regarding assignment. Thus in principle the assigner's notice and the obligor's consent have the same effect on whether the requisite for setting up an assignment is severed so even if the obligor does not object, a simple consent does not cut off the requisite for setting up an assignment. 4. The bill newly devised a clause on the relations of the Assignment and set-offs so in order to challenge the assignee with set-off, it is not necessary for the obligor to be in a state where both claims are due. As long as the obligor has acquired his claim against the assigner before fulfilling the requisite for setting up an assignment, the obligor is entitled to challenge with set-off regardless of when both claims are due.