판례평석(判例評釋) : 대항요건을 갖춘 지명채권양도 효력의 소급성과 유동적무효론 -대상판결 : 대법원 2005. 6. 23. 선고 2004다29279판결- = Analysis on Court Decision : Retroaction of Effect in Assignment of nominated Claim with Notification or Acceptance

다국어 초록 (Multilingual Abstract)

Pertaining to the opposability of the Article 450, clause 1 of Korean Civil Code, it matters when the effect of the assignment of nominated claim occurs, because there is a time lag between the action of assignment of the nominated claim and the assignor`s notification or the obligor`s acceptance. So does he assignment of the nominated claim with registered mortgage. In the latter case the object jurisprudence recognized that the auction for the assignee without the assignor`s notification or the obligor`s acceptance is valid, without the debtor`s protest. But the opposability in the assignment of the nominated claim should be regarded as effect requisite of the assignment without which the assignment essentially is ineffective. So the object jurisprudence could not be justified. Universally the legal action, which need an another requisite than declaration of intention for the occurrence of effectiveness is provisionally ineffective, and has effectiveness retroactively with the existence of that requisite. In the case of the object jurisprudence, because there was the assignor`s notification in trial, the assignment of nominated Claim had its effect retroactively. In this point the object jurisprudence could be justified.