2. Of the distribution schedule prepared by the above court on August 17, 2012, the dividends amounting to the plaintiff 74,025,182 won, 222,075,542 won, the dividends amounting to the defendant 1 to KRW 17,782,01,014 won, the dividends amounting to the defendant 2 to KRW 3,202,396 won, the dividends amounting to the defendant 3 to KRW 11,197,530 won, the dividends amounting to the defendant 4 to KRW 15,868,420 won, and the dividends amounting to the defendant 3 to KRW 11,197,530, the dividends amounting to KRW 15,868,420 against the defendant 4 to KRW 0, respectively.

3. The total costs of the lawsuit shall be borne by the Defendants.

(a) Deposit of security for suspension of execution of a judgment with a declaration of provisional execution by CEX; and

(1) On August 10, 2009, the Defendants and Nonparty 3 filed a lawsuit claiming damages (Seoul Southern District Court 2009Gahap17524) against C&T and Nonparty 1 and Nonparty 2 as shareholders of C&T (hereinafter “CT”) and received a judgment in favor of some of the following:

The amount of responsibility listed in the table Nos. 260 78,945,7952,630,530 252,630,630,630 252,630,630,630 454,065,530,530,5304 Defendant 45,065,530,530 454,065,530,530 54,065,530 (20% of the amount of damage) (20% of the amount of damage) 160,391,350,350 40,351,399,902, 2666,260,607, 2666, 378,945, 752,630,530, 5304,690

(2) On July 13, 2010, the Seoul Southern High Court filed an appeal (Seoul High Court 2010Na75459) against the judgment of the first instance on which a provisional execution sentence was issued on July 13, 2010, and filed an application for suspension of execution under Article 501 of the Civil Procedure Act (Seoul Southern District Court 2010Kaga1258).

(3) On July 20, 2010, the Seoul Southern District Court rendered a decision to suspend its enforcement until the appellate court rendered a judgment, on the condition that the defendant 1, who is the applicant, the defendant 1, the non-party 1, and the non-party 2 deposited the amount of KRW 46 million for the defendant 2, the amount of KRW 87 million for the defendant 3, the amount of KRW 287 million for the defendant 4, and the amount of KRW 41 million for the defendant 4, respectively.

(4) Accordingly, on July 14, 2010, CEX paid KRW 515,498,255 (a total of KRW 46 million for Defendant 1 and KRW 87 million for Defendant 2, and KRW 487 million for Defendant 4,000 for Defendant 3, KRW 287,000 for Defendant 4 and KRW 41,000 for Defendant 4,000 for Defendant 4,00 won for Defendant 4 and KRW 382,00,000 for Defendant 4 (Seoul Southern District Court Decision 2010Da3697, hereinafter “instant deposit”).

(b) Confirmation of the commencement of rehabilitation procedures for CEX and the reversion of the Plaintiff’s right to claim deposit collection;

(1) On April 27, 2011, the rehabilitation procedure for C&T was initiated, and the Plaintiff was appointed as a custodian (Seoul Central District Court 201 Gohap42), and the Defendants’ claims against C&T were recognized as rehabilitation claims in full in the procedure. On November 25, 2011, 71% of them was converted into equity investment and 29% of the remainder was approved.

(2) Meanwhile, on August 8, 2012, the Plaintiff, the manager of CEX, filed a lawsuit seeking confirmation against Nonparty 1 and Nonparty 2 that the right to claim the deposit (Seoul Southern District Court No. 2010, No. 3697) belongs to CON and received a favorable judgment (Seoul Central District Court 2012Gahap67417) and the judgment became final and conclusive.

C. A collection order for the Defendants to seize and collect the claims

(1) On May 10, 201, the appellate court of the judgment of the first instance, where a provisional execution sentence is attached, brought a case to conciliation ex officio, and rendered a decision in lieu of conciliation as follows. The decision became final and conclusive around that time.

Defendant 1 201,956,750 51,498,970 24,234,810 234,810 236,333,009,264,915 4,359,960 4,359,960 31,263,152,650 322,103,9251,578,310 151,578,310 4,418,4505,70626, 2108, 2968, 298, 2096, 208, 2616, 298, 208, 151, 2578, 310, 310, 318, 310, 4180, 2610, 26196, 298

(2) On June 2, 2011, based on the authentic copy of the decision in lieu of the above executory conciliation against Nonparty 1 and Nonparty 2, the Defendants received a seizure and collection order (Seoul Central District Court 201TT 201T 23158) against Nonparty 1’s right to claim the deposit collection against the Republic of Korea, and on August 11, 2011, the Defendants received a seizure and collection order (Seoul Central District Court 201TT 21589) against Nonparty 2’s right to claim the deposit collection against the Republic of Korea (hereinafter “right to claim the deposit collection”).

D. The dividend based on each seizure and collection order of the Defendants

(1) The Defendants participated in the distribution procedure of the Seoul Central District Court 201tagi4849 regarding the instant deposit based on each of the above orders of seizure and collection. On August 17, 2012, the distribution schedule was formulated to the Plaintiff on the date of distribution, including KRW 74,025,182, and KRW 17,782,014 to Defendant 1, KRW 3,202,396 to Defendant 2, KRW 111,197,530 to Defendant 3, and KRW 15,868,420 to Defendant 4 (hereinafter “instant distribution schedule”).

(2) The Plaintiff appeared on the date of the above distribution and stated an objection against the total amount of the dividend of the Defendants.

[Ground of recognition] The fact that there is no dispute, Gap's 1 through 22, 24 through 28, 36, Eul's 1 (including each number in case of additional number) and the purport of whole pleadings

2. Judgment on the issue

A. The parties' assertion

(1) The Plaintiff asserts that since C&T contributed the entire amount of the instant deposit, the right to claim the instant deposit belongs to C&T, and Nonparty 1 and Nonparty 2 did not have the right to claim the recovery of the instant deposit. Therefore, since each claim for the seizure and collection order, which the Defendants received against Nonparty 1 and Nonparty 2, did not exist with the claims to be seized, the instant distribution order is null and void in entirety, and the amount of dividend against the Plaintiff should be revised to KRW 22,075,542, and the amount of dividend against the Defendants should be revised to KRW 0.

(2) On this issue, the Defendants asserted that the right to claim the deposit money belongs to C&T, the depositor regardless of the amount of the deposit money, and that the right to claim the deposit money belongs to C&T, the custodian, the non-party 1, and the non-party 2. Therefore, the Defendants’ respective right to claim the seizure and collection order of each of the Defendants and the pertinent distribution schedule pursuant thereto are lawful. Furthermore, when the Plaintiff’s claim of this case is accepted, Defendant 1, Defendant 2, and Defendant 3 asserted the illegality of each of the above Defendants’ right to claim the deposit money collection under the joint name deposit with the non-party 1, and the non-party 2, and the non-party 2, and the non-party 2, on the ground that the right to claim the deposit collection under the security cancellation belongs to C&T alone on the ground that the right to claim the deposit collection belongs to C&T alone on the ground of internal funding relationship.

B. Determination

(1) The person to whom the right to claim the deposit of this case belongs

The deposit as a joint guarantee provided by multiple applicants in order to suspend compulsory execution according to an appeal against the judgment to which a declaration of provisional execution has been attached is ordinary damages arising from the result that the execution creditor is unable to execute provisional execution until the judgment on the merits of the appeal is rendered (see Supreme Court Order 79Ma74, Nov. 23, 1979). Therefore, the basic claim of execution subject to the suspension of execution itself is not secured (see Supreme Court Order 79Ma74, Nov. 23, 1979). Therefore, without asking whether the respondent deposits as a joint guarantee of the applicant for the respondent is subject to the suspension of compulsory execution for any applicant, and what applicant has contributed and provided for damages arising therefrom, the respondent has a security right (the right to use the same right as the pledgee for repayment with the advance payment of deposit) as to the entire deposit (the right of the applicant can be interpreted as guaranteeing the status of preferential repayment as well as the right of priority of the respondent for the withdrawal of deposit money as well as the right of preferential repayment between the applicant and the other applicant can not be exempted as a security.

However, in a case where a joint name applies for the suspension of compulsory execution and the court deposits as a joint name for the respondent without individually ordering the applicant to provide security and deposit as a joint guarantee pursuant to an order, the ownership and proportion of the right to claim the deposit due to the cancellation of security and the right to claim the deposit shall be determined according to the real relation with which the respondent bears the security right prior to the respondent. Therefore, it shall be interpreted that the depositee who actually contributed the full amount of the security deposit can exercise the right to claim the recovery of the deposit with the judgment of the purport that the other depositor

As acknowledged earlier, the Defendants received the judgment of the first instance on which the sentence of provisional execution was issued against Cmotex and Nonparty 1 and Nonparty 2. Cmotex and Nonparty 1 and Nonparty 2 filed an appeal, and filed an application for suspension of execution for each of the respondent pursuant to the court’s order for joint security provision, and deposited the amount of KRW 382 million, including KRW 46 million for Defendant 1; KRW 87 million for Defendant 2; KRW 287 million for Defendant 3; and KRW 41 million for Defendant 4,000,000 for Defendant 4, as well as KRW 382,00,000,000,000 for Defendant 4, by contributing all of the funds necessary for deposit, and deposited in the name of Cmot and Nonparty 1, and Nonparty 2’s three. The right to claim for the cancellation of the security deposit made under such joint name is the respondent, and the right to claim for the withdrawal of the deposit can not be seen as having an effect of proximate causal relationship between the Defendants’s execution claim itself.

Therefore, based on the authentic copy of the decision in lieu of executory adjustment of basic claims subject to the suspension of execution by the Defendants, the seizure and collection order for the claims for the recovery of deposit money by Nonparty 1 and Nonparty 2 has no substantive effect since there exists no claim subject to the seizure.

(2) Whether the good faith principle is violated

As seen earlier, security deposited to suspend compulsory execution following an appeal against a judgment with a provisional execution declaration shall not be provisionally executed by the execution creditor until the judgment on the merits of the appeal is rendered by the execution creditor. As such, the ordinary damage arising from the suspension of execution is securing the damage in proximate causal relation with the suspension of execution, and the creditor has the same right as the pledgee only to the claim for damages, and does not have the same right as the pledgee, and thus, the deposit cannot be appropriated preferentially to the basic claim (see Supreme Court Order 79Ma74, Nov. 23, 1979).

According to the facts established above, the security deposited under the joint name with the non-party 1 and the non-party 2, as a result of the suspension of execution based on the judgment of the court of first instance against which the provisional execution declaration was attached, is aimed at securing ordinary damages suffered by the Defendants due to the suspension of execution of provisional execution, which was based on the judgment of the court of first instance against which the provisional execution declaration was attached, and it does not aim at securing claims according to the defendants' decision in lieu of conciliation against the non-party 1 and the non-party 2. Therefore, the plaintiff's assertion that the claims for the recovery of the security deposited under the joint name with the defendant's own contribution of the defendant's own account belongs to the non-party 1 and the non-party 2, and the non-party 2's claim for the seizure and collection of the security deposited under the joint name shall not be deemed to violate the principle of good faith on the ground that the claims for the

(3) Sub-determination

Ultimately, the Seoul Central District Court’s 201ta-Ba4849 case should adjust the dividend amount to KRW 74,025,182 won against the plaintiff among the dividend table prepared by the said court on August 17, 2012, to KRW 222,075,542; KRW 17,782,014 of the dividend amount against the defendant 1; KRW 3,202,396 of the dividend amount against the defendant 2 to KRW 0; KRW 111,197,530 of the dividend amount against the defendant 3; KRW 15,868,420 of the dividend amount against the defendant 4 to KRW 0.

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted because all of the claims against the defendants are reasonable, and the judgment of the court of first instance, which has different conclusions, is unfair, and it is so decided as per Disposition by cancelling this and revising the distribution schedule as above.

Judges Kim Jong-Un (Presiding Judge)