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• 영문명: Consent to an Assignee without Reservation in the Assignment of a Nominative Claim and the Revival of a Mortgage
• 발행기관: 한국민사법학회
• 저자명: 秦鴻璂(HongKi Jin)
• 간행물 정보: 『민사법학』제51호, 263~303쪽, 전체 41쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2010.12.31

영문 초록

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.

목차

Ⅰ. 글머리에

Ⅱ. 채권양도에 있어서 채무자의 양수인에 대한 항변승계와 항변절단

Ⅲ. 채무자의 채권양도에 대한「이의를 보류하지 않은 승낙」과 담보권의 부활

Ⅳ. 마치는 글

참고문헌

키워드

채권양도 이의를 보류하지 않은 승낙 담보권 저당권 물상보증인 공신력 The assignment of a nominative claim Consent to assignee without reservation Mortgage a Mortgagor a Guarantor the Revival of a Mortgage Public trust Real Property