채권양도금지특약에 관한 민법 규정의 운용방향

It has been stressed that the right of a creditor is assignable and no-assignment clause between the parties is appraised to stand against this principle openly. The civil code prescribed that the debtor can not put up this clause against the assignee in case that the assignee dose not recognize the clause. The court has interpreted that the case of gross negligence of assignee is counted out and enlarged the scope of validity of no-assignment clause. However, the academia has taken some critical stance and recently took one step further to insist that the requirement of ignorance be ruled out, which means to get rid of meaning of no-assignment clause. In this article I tried to argue that the criteria taken by court to judge the validity of no-assignment clause, namely the recognition of assignee about the clause are not appropriate theoretically and practically. Actually the assignment to put much burden on the debtor should be restricted in the nature of assignment. Therefore the no-assignment clause should be interpreted to strengthen the standard of limitation. That means to explore what the interest of debtor on no-assignment clause is and if that interest is worth protecting prior to assignability of right of creditor. Besides the criteria taken by court, namely the recognition and gross negligence of assignee provide neither predictability about the validity of no-assignment clause, nor standard of action of debtor or assignee in case of transaction of contractual rights.