지명채권양도에서의 대항요건주의

A reappraisal of the rules governing the assignment of claims

Contractual claims represent a major tradeable asset. Their assignability is generally recognised in korean civil law like in other legal systems. An assignment is not subject to any requirement as to form. But it is necessary to distinguish the requirements for the formal validity of an assignment, the circumstances which preclude the debtor from performing in favour of the assignor, the conditions that have to be satisfied before the assignee can require performance from the debtor, and the requirements for preservation of the assignee s priority. The Korean Civil Code §450 requires notification to the debtor or acceptance by the debtor for the purpose of imposing on the debtor the obligation to pay the assignee, and notification or acceptance with a fixed date for preserving an assignee s priority against the claim of a subsequent assignee. But the rules are not consistent with those of transfer of property rights. Also some difficulties arise where notification is given to the debtor by the assignee, where the debtor who has accepted without objection asserts all defences against the assignee, and especially where the debtor is faced with competing demands for performance from two or more parties claiming an interest in the assigned claims. Since the enactment of the Korean Civil Code a number of theories and cases have tried to solve these problems concerning requisites for exercising the claim or getting the priority. Nevertheless the rules and provisions need to be reappraised fundamentally and to be revised. And the principles and rules governing the assignment of claims have to be designed to facilitate the assignment and to protect the assignee while at the same time ensuring that the debtor s rights are not prejudiced by the assignment.