債權讓渡에 대한 異議를 保留하지 않은 承諾과 諸抗辯의 承繼ㆍ切斷效 (Consent to an Assignee without Reservation by an Obligor and his Succession of, and Divorce from a Refutation)

서지정보

· 발행기관 : 한국사법학회
· 수록지 정보 : 비교사법 / 18권 / 1호 / 79 ~ 116페이지
· 저자명 : 진홍기

초록

The Korean Civil Code provides that the assignment of a nominative claim cannot be set up against an obligor or any other third party, unless an assignor has given notice thereof to an obligor or the obligor has consented thereto.
Regarding the legal effect of the Article 451, Paragraph 1, lots of arguments has been raised because an obligor's ‘consent to an assignee without reservation’ may raise problematic issues with regard to public trust and estoppel.
It has been admitted by Korean as well as Japanese courts that when an obligor gives consent to an assignee without reservation, he cannot set up his refutation that he had against the assignor, also against the assignee. This estoppel prohibiting the obligor from setting up his refutation has been provided for the purpose of promoting nominative claim transactions and also of affording protection to the assignee. Consequently, it has been recognised that the public trust has been given on the consent without reservation made by the obligor.
As such this article explored and examined various problems, arising out of the invalidity, cancelation, termination of a contract when an obligor makes ‘consent to assignee without reservation’. Futhermore, this article attempted to resolve those problems by scrutinizing the relevant authorities and arguments made by a group of scholars in Korea as well as Japan.

영어초록

The Korean Civil Code provides that the assignment of a nominative claim cannot be set up against an obligor or any other third party, unless an assignor has given notice thereof to an obligor or the obligor has consented thereto.
Regarding the legal effect of the Article 451, Paragraph 1, lots of arguments has been raised because an obligor's ‘consent to an assignee without reservation’ may raise problematic issues with regard to public trust and estoppel.
It has been admitted by Korean as well as Japanese courts that when an obligor gives consent to an assignee without reservation, he cannot set up his refutation that he had against the assignor, also against the assignee. This estoppel prohibiting the obligor from setting up his refutation has been provided for the purpose of promoting nominative claim transactions and also of affording protection to the assignee. Consequently, it has been recognised that the public trust has been given on the consent without reservation made by the obligor.
As such this article explored and examined various problems, arising out of the invalidity, cancelation, termination of a contract when an obligor makes ‘consent to assignee without reservation’. Futhermore, this article attempted to resolve those problems by scrutinizing the relevant authorities and arguments made by a group of scholars in Korea as well as Japan.

참고자료

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