The Article 450 (1) of the Civil Act provides the notice of the creditor or the consent of the debtor as a requisite for setting up assignment of a nominative claims. Among theories and precedents, there are some disputes regarding the legal position of the assignee without the prescribed requirement.This judgment holds that the assignee of mortgaged claim without the setting up requirement can file a mortgage execution with a good cause, by which strengthens the legal position of that assignee.It is necessary to confirm the meaning of the clause "cannot be set up against" of the Article 450 (1) of the Civil Act regarding the legal position of the assignee of without the setting up requirement. The clause indicates that the claim assignment cannot be asserted as effective against the creditor or the third party, but not that the claim assignment is not effective itself. And a filing of a mortgage execution is not a right execution to ask the setting up requirement against the third party. So, the assignee of mortgaged claim without the setting up requirement can file a mortgage execution with a good cause as a proper understanding of the Article 450 (1) of the Civil Act.Finally, the holding of this judgment is correct.
The Article 450 (1) of the Civil Act provides the notice of the creditor or the consent of the debtor as a requisite for setting up assignment of a nominative claims. Among theories and precedents, there are some disputes regarding the legal position of the assignee without the prescribed requirement.This judgment holds that the assignee of mortgaged claim without the setting up requirement can file a mortgage execution with a good cause, by which strengthens the legal position of that assignee.It is necessary to confirm the meaning of the clause "cannot be set up against" of the Article 450 (1) of the Civil Act regarding the legal position of the assignee of without the setting up requirement. The clause indicates that the claim assignment cannot be asserted as effective against the creditor or the third party, but not that the claim assignment is not effective itself. And a filing of a mortgage execution is not a right execution to ask the setting up requirement against the third party. So, the assignee of mortgaged claim without the setting up requirement can file a mortgage execution with a good cause as a proper understanding of the Article 450 (1) of the Civil Act.Finally, the holding of this judgment is correct.
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