통지·승낙이 없는 지명채권양도의 채무자에 대한 효력

Effect to the Obligor in Assignment of nominated Claim without Notification or Acceptance

Concerning the opposability of the Article 450, clause 1 of Korean Civil Code, it is a point at issue that the assignment contract of the nominated claim without the assignor s notification or the obligor s acceptance has the effect of the assignment. For this, there are the effectiveness opinion, the ineffectiveness opinion and the relative ineffectiveness opinion etc. However, in general, it is said that the inopposability which the Article 450, clause 1 of Korean Civil Code provides means that the assignee can not exercise the nominated claim to the Obligor without the assignor s notification or the obligor s acceptance. So the assertion such as effectiveness opinion in which the assignment of nominated Claim has its effect with that contract is rebelled against to the letter of the Article 450, clause 1 of Korean Civil Code. So does the relative ineffectiveness opinion. And in case of this relative ineffectiveness opinion, because the interval of the time in effectuation of assignment between assignor and assignee, the attribution of the accessory claim such as interest can be different. Universally the claim or credit is defined as a right of a particular person who can claim to the another particular person to do something particular; and it is said that the creditor has the claiming power to his obligor. The assignment of the nominated claim without the assignor s notification or the obligor s acceptance essentially does not have the claiming power. So the assignor s notification or the obligor s acceptance in the assignment of the nominated claim should be regarded as effect requisite of the assignment of nominated claim. Since, on this opinion, the assignor is the only rightful creditor claiming the claim, while there is neither assignor s notification nor obligor s acceptance in the assignment of the nominated claim, it is the assignor that can interrupt the prescription of the claim in course of a trial. It is justified that the object jurisprudence recognizes the assignor as creditor of nominated Claim in the interruption of the prescription in trial.