지명채권양도에서의 대항요건주의

• 영문명: A reappraisal of the rules governing the assignment of claims
• 발행기관: 한국민사법학회
• 저자명: 최수정(Choi, Su Jeong)
• 간행물 정보: 『민사법학』제52호, 391~418쪽, 전체 28쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2010.12.31

영문 초록

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.

목차

Ⅰ. 서

Ⅱ. 대항요건주의의 의의와 체계상의 한계

Ⅲ. 대항요건의 구비에 있어서 당사자의 이해관계

Ⅳ. 대항요건에 따른 우열의 판단

Ⅴ. 결론

참고문헌

키워드

채권양도 대항요건주의 성립요건주의 양도통지 이의를 보류하지 않은 승낙 대항사유 확정일자 assignment priority between assignees notification of assignment debtor s acceptance priority