채권양도에서 이의를 보류하지 않은 승낙 및 상계- 대법원 2019. 6. 27. 선고 2017다222962 판결 -

초록

The Supreme Court’s Decision(hereinafter ‘the decision’) provides the criteria for judging the recognition without objection in the case whether the debtor's issuance of a confirmation document(hereinafter ‘the document’) after being notified of the assignment is recognition without objection or not. The document that expresses the awareness of the assignment is the recognition of the assignment. It is reasonable that the decision is based on that premise. The recognition without objection is not a manifestation of the intention of waiving the refusal ground. Article 451(1) of the Civil Act provides the significant effect that the debtor who recognizes assignment without objection cannot resist to the assignee with the refusal ground that she had to the assignor. The majority theory and precedents, similar to that of Japan before the revision of the Japanese Civil Act in 2017, take public trust theory, and the decision reconfirms it. However, it is not reasonable to acknowledge public trust in the recognition of assignment that is not required any specific method. The purpose and basis of Article 451(1) are to protect the assignee’s trust and ensure the safety of the transaction since the debtor has given the assignee the trust that there is no refusal ground to the assignor by recognizing without objection. Whether or not there is the debtor’s recognition without objection should be judged depending on whether the assignee has come to trust that there is no refusal ground, and it is meaningful that the decision explicitly stated it. However, I do not agree with the specific grounds for judging that the document did not arouse the trust of the assignee. The document only states that the debtor is aware of the assignment, and does not express an intention as to whether or not to withhold the objection. This kind of silence does not give the assignee the trust that there is no refusal ground to the assignor. Also, the fact that the debtor was unaware of the set-off does not affect the trust of the assignee. The decision rules the same as the previous Supreme Court decision on whether the debtor can resist the assignee with the set-off to the assignor after being notified of the assignment. Regrettably, the decision leaves room for different understanding without clarifying the opinion of the Supreme Court that decides whether or not to allow set-off based on the date of payment.

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