채권양도금지특약의 효력과 채무자의 보호 - 대법원 2019.12.19. 선고 2016다24284 전원합의체 판결에 대한 평석 -

The effect of anti-assignment clause is a theoretically complicated and practically important issue in assignment. On December 2019 our supreme court comprising all of the justices declared very consice and profound legal theory on this point. The opinion of the minority interprets the clause “a contractual claim is assignable”(Art. 449①) as declaring a freedom of assignment. Some theories go further this way by consisting that the requirment of ignorance of assignee about no-assignment clause be abolished. But the opinion of the majority puts on the brake. That means that the court accepts the no-assignment clause as a defending tool against the one-sided right of assignment of obligor and as being respected. This article agrees with this posture of majority. Also I demonstrated the effect of no-assignment clause and the ignorance of asignee have no relevance. The attitude of assignee cannot be a independent creterion of appraisal and the effect of clause is asked to be judged just between obligor and obligee. I declared that the no-assignment clause should respected in principle and the assignment can be effective despite of the clause only when the obligee has ‘just cause’ for assignment. That suggests an another legislative solution.