양도금지특약을 위반한 채권양도의 효력 - 대법원 2019. 12. 19. 선고 2016다24284 전원합의체 판결 -

초록

The Supreme Court’s en banc Decision ruled on the effect of the assignment against non-assignment agreement. The majority opinion advocated the so-called proprietary effect theory while the minority opinion advocated the so-called obligatory effect theory. Article 449(2) of the Civil Act provides that the assignability under Article 449(1) can be restricted by the contrary intention of the parties. The meaning of the wording of Article 449(2) is that the assignment against non-assignment agreement is null, however, to protect the safety of the transaction, the nullity cannot be claimed against a bona fide third party. The intention of the legislator in Article 466 of the Japanese Civil Act was the proprietary effect theory, and the laws of other countries referenced by the legislator were also the proprietary effect theory. Therefore, it must be said the legislator has adopted the proprietary effect theory. It can be said that improving the assignability is an international trend, but the minority opinion to follow the trend by changing the precedent is beyond the scope of the interpretation theory. Therefore, the majority opinion maintaining the precedent that took the proprietary effect theory is valid. The defendant approved the assignment by rejecting the plaintiff's claim for performance. The obligor's post-approval is the ratification of a provisional invalid act, and it has retroactive effect in accordance with the ratification of unauthorized representation. However, the right of a third party shall not be prejudiced thereby. On the issue of the requisite for setting up assignment against the obligor, the trustee in bankruptcy falls under a third party like the seizing creditor. Accordingly, the trustee in bankruptcy shall be regarded as a third party who is not prejudiced by the obligor’s post-approval. In this case, the assignment is invalid despite the defendant's approval, so the conclusion of the majority opinion that the assignor has the claim is right. However, it is not justified that the majority opinion did not judge the above legal issues arising from the defendant's approval.

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