債權讓渡에 대한 異議를 保留하지 않은 承諾과 擔保權의 復活

Consent to an Assignee without Reservation in the Assignment of a Nominative Claim and the Revival of a Mortgage

Under the Korean Civil Code, the assignment of a nominative claim cannot be set up against the obligor or any other third party, unless the assignor has given notice thereof to obligor or the obligor has consented thereto. On the other hand, it can be said that when a nominative claim is assigned to a third party, a mortgage attached to it also follows therewith. There have been lots of studies and also arguments on the legal effect in respect of the Article 451 Paragraph 1, concerning the obligor s ‘consent to the assignee without reservation . It has been admitted by Korean 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 an obligor from setting up his refutation has been provided for the purpose of promoting transaction on a nominative claim and of affording protection to an assignee. Therefore, it is largely accepted that the consent without reservation made by an obligor give rise to the public trust put on by an assignee. This article explored and examined various problems that may arise when the obligor makes ‘consent to assignee without reservation , by way of balancing the interest of a mortgagor, a guarantor, a third party who takes the title of the real property put on a mortgage. This article also has attempted to resolve those problems by scrutinizing the judgements rendered by Korean and Japanese Supreme Court and criticised various arguments made by a group of scholars in order to bring out fruitful discussions.