Dongjin Lee, The Effect of Assignment Before Signification or Acceptation, The Korean Journal of Civil Law, Vol. 90 (2020), pp. 267-310.
<Abstract>
Article 450 of the Korean Civil Code adopts the principle of opposabilité in terms of the law of assignment, which means the assignee cannot oppose the assignment of debt to the debtor unless the debtor is signified of the assignment or accepts it. The most difficult issue in the law of assignment which adopts the principle of opposabilité, what the positions the assignor and assignee before they finish signification or acceptation of assignment have, has not been fully addressed in literature thus far, while they are answered somewhat confusingly and contradictorily by recent case law made by the Korean Supreme Court. In this article, the author attempts to illuminate the rightful understanding of the principle of opposabilité by tracing the historical origin from the French Civil Code to Boissonade’s draft Japanese Civil Code to the Japanese Civil Code, analyzing comparative legal development of assignments in France, Germany, Austria, Switzerland , England and USA, and d emonstrating the theoretical as well as practical aspects of opposabilité. In addition, the author shows that the signification requirement in the principle of can be attributed to the archaic notion of the principle of delivery and the notion of signification in law of assignment as an equivalent of delivery in law of personal property. Finally, the author proposes the abolishment of the principle of opposabilité in the law of assignment.
<Keywords>
assignment, principle of opposabilité, Boissonade, assignor, assinee, principle of delivery
Dongjin Lee, The Effect of Assignment Before Signification or Acceptation, The Korean Journal of Civil Law, Vol. 90 (2020), pp. 267-310.
<Abstract>
Article 450 of the Korean Civil Code adopts the principle of opposabilité in terms of the law of assignment, which means the assignee cannot oppose the assignment of debt to the debtor unless the debtor is signified of the assignment or accepts it. The most difficult issue in the law of assignment which adopts the principle of opposabilité, what the positions the assignor and assignee before they finish signification or acceptation of assignment have, has not been fully addressed in literature thus far, while they are answered somewhat confusingly and contradictorily by recent case law made by the Korean Supreme Court. In this article, the author attempts to illuminate the rightful understanding of the principle of opposabilité by tracing the historical origin from the French Civil Code to Boissonade’s draft Japanese Civil Code to the Japanese Civil Code, analyzing comparative legal development of assignments in France, Germany, Austria, Switzerland , England and USA, and d emonstrating the theoretical as well as practical aspects of opposabilité. In addition, the author shows that the signification requirement in the principle of can be attributed to the archaic notion of the principle of delivery and the notion of signification in law of assignment as an equivalent of delivery in law of personal property. Finally, the author proposes the abolishment of the principle of opposabilité in the law of assignment.
<Keywords>
assignment, principle of opposabilité, Boissonade, assignor, assinee, principle of delivery