채권양도금지 특약의 효력

Prohibition of Assignment and its Effect

The size of receivables trading has been rapidly increased since the end of 20th century. The representative of those receivables trading is asset securitization. Traditionally, there have been two positions in analyzing the effect of Prohibition of Assignment. One position says that a prohibition agreement between creditor and debtor provides an absolute effect not only between them but also between others, especially with assignees. The other position says that such agreement provides only relative effect between creditor and debtor so that the assignee would not be affected. The revision trend in various jurisdictions, including German Commerce Code, French Civil Code, American Uniform Commercial Code, United Nations Convention on the Assignment of Receivables in International Trade, UNDROIT Principles of International Commercial Contracts, Principles of European Contract Law and Draft Common Frame of Reference, is heading toward the relative effect position. In the course of preparing draft provision, the Revision Committee of Korea does not seem to have paid enough attention to the international trends and the positions of other jurisdictions. Although various acts and codes with the relative effect do not have singular content, the draft provision, proposed by the Revision Committee, did not delve deeply into the meaning of relative effect. On the other hand, when we come to review additionally on the draft provision, we should adjust between the interest of the debtor and the assignee. Also, a certain area, where assignments are absolutely valid in spite of prohibition clause, is needed. To conclude, more attention should be paid to the legal effect of assignment prohibition agreements.