[2] Whether the effect of the repayment shall be lost in case where the creditor of the repayment deposit withdraws the repayment deposit with the order of seizure of the claim for the repayment of deposit money and the order of assignment of the claim for the repayment of deposit money after the deposit becomes effective (negative)

[3] In the case of / [2] Whether the obligation to return unjust enrichment to the depositee for repayment is established and the scope thereof

[2] As long as a judgment which judged the validity of a deposit for repayment has become final and conclusive, the right to claim the return of the deposit for repayment becomes final and conclusive as the repayment becomes final and conclusive due to the substantial extinguishment of the right to claim the return of the deposit for repayment. Thus, even if the creditor of the deposit for repayment attached the right to claim the return of the deposit already extinguished and paid the deposit, it shall be deemed null and void because it does not fall under the requirements for the return of the deposit under Article 489(1) of the Civil Act. Therefore, the effect of

[3] The existence of a final and conclusive judgment cannot be known unless the original and the defendant submit a certified copy, etc. of the previous final and conclusive judgment. Therefore, it is difficult to conclude that paying the repayment deposit to the creditor in accordance with the order of seizure and assignment of claims is unlawful under the Deposit Act. Therefore, the repayment depositer obtains profits equivalent to the amount of the extinguished debt due to the recovery of the repayment deposit and appropriation of his/her own debt, and thereby causes losses to the beneficiary who loses his/her right to claim the payment of the deposit equivalent to the amount of the extinguished debt. Therefore, it shall be deemed that he/she has the obligation to return such profits to the defendant. Meanwhile, it is reasonable to deem that the creditor of the repayment deposit has already known that he/she had already suffered unjust enrichment in the course of receiving the seizure and assignment order of the right to claim the payment of deposit money, and therefore, it shall be returned as a malicious beneficiary with interest under the Civil

1. The Defendant shall pay the Plaintiff the amount of KRW 32,100,000 and the amount of KRW 5% per annum from November 16, 1999 to the date of full payment, and simultaneously implement the registration procedure for transfer of ownership based on a transfer agreement made on November 21, 1980 with respect to each real estate indicated in the separate sheet to the Plaintiff.

2. The plaintiff's remaining claims are dismissed.

3. All the costs of the lawsuit shall be divided into two parts of the first and second instances, and one of them shall be borne by the plaintiff, and the remainder by the defendant, respectively.

The defendant asserts that the plaintiff's claim of this case is unlawful because it conflicts with res judicata of the previous final and conclusive judgment related to one real estate between the plaintiff and the defendant, or is claimed as a preliminary one in the previous final and conclusive judgment.

In addition to the whole purport of pleading in the statement No. 6-1 to No. 5, the plaintiff filed a lawsuit against the defendant prior to filing the lawsuit in this case for the cancellation of ownership transfer registration for the remaining one-half shares (hereinafter referred to as "the subject matter of the previous lawsuit") in the name of the defendant. The Busan District Court (No. 97Na482) finally accepted the plaintiff's primary claim, and "the defendant will implement the procedure for registration of cancellation of ownership transfer registration for the subject matter of the previous lawsuit on Nov. 27, 1980, which was completed on Nov. 27, 1980 by the Busan District Court (No. 5748). The judgment was affirmed in favor of the plaintiff, and the judgment became final and conclusive on Feb. 10, 1998 (hereinafter referred to as "previous final and conclusive judgment"), and the subject matter of the previous claim for ownership transfer registration for each of the subject matter of the final and conclusive judgment cannot be seen to have been accepted as the subject matter of the final and conclusive judgment.

2. Judgment on the merits

A. Facts of recognition

The following facts are as follows: Gap evidence 1 to Gap evidence 4, Gap evidence 5-1 to Gap evidence 8-11 (the defendant acknowledged the authenticity with respect to Gap evidence 4 and later asserted that it was corrected as denial because it was made against the truth due to mistake, but there is no evidence to prove that it was made against the truth due to mistake, and therefore, the above proof correction claim can be acknowledged by considering the whole purport of the pleading as a whole.

(1) On May 31, 1979, the Plaintiff purchased 44,331/7,388 shares of 162-1, 44,331 square meters of woodland 162-1, Yong-dong, Yong-dong, Busan (hereinafter referred to as “shares prior to the division”) from the Non-Party Sporo, and completed the registration of ownership transfer under the name of the Plaintiff’s husband, the husband on the same day. The share of the land prior to the division was divided into each of the instant real estate including the object of the previous lawsuit on April 18, 1988.

(2) On September 21, 1980, through the defendant, the plaintiff lent and used 17,500,000 won in total, including 3 million won in face value, 5 million won in face value, 17,500,000 won in face value, 3.5 million won in promissorysory notes. Upon the plaintiff's request on October 1980, the defendant paid the above 17,500,000 won in interest on behalf of the plaintiff. Accordingly, on November 21, 1980, the plaintiff completed the registration of ownership transfer with the above 1,77,50,000 won in total to secure the liability for indemnity against the defendant, but the plaintiff completed the registration of ownership transfer with the above 47,000 won in installments to the defendant 1,750,000 won in face value, and the plaintiff completed the registration of ownership transfer with the above 47,000,000 won in Busan District Court's agreement to sell the above 17,07,000,00,00.

(3) The plaintiff filed a lawsuit against the defendant for the cancellation of the ownership transfer registration on the object of the previous lawsuit to recover the above registration of ownership transfer. The court below (Seoul District Court 92Da52968) rendered a judgment against the plaintiff on October 26, 1994 on the ground that there is no evidence to regard the agreement as a collateral agreement. The appellate court rendered a judgment against the plaintiff on April 19, 1996 (the above court 94Na1731) was a collateral agreement, and the plaintiff's first repayment deposit (the principal debtor was the defendant on July 19, 1994, and the plaintiff was recovered later) on the ground that the secured debt was extinguished due to the plaintiff's first repayment deposit (the court 97Da21500 delivered on July 19, 199, the appellate court reversed the judgment against the plaintiff 197Da197497 delivered on December 6, 196, and the appellate court reversed the plaintiff's first repayment deposit or 1970 million won.

(4)However, even though it was judged by the previous final judgment that the payment deposit of this case was lawful and valid, on October 13, 1999, the Defendant paid the above payment deposit on November 16, 1999 on the ground of the attachment and assignment order of the claim by Busan District Court as to the Plaintiff’s right to claim the recovery of the payment deposit of this case on October 13, 1999.

B. Parties’ assertion

The plaintiff asserts that since the secured obligation of this case was extinguished due to the repayment deposit of this case, the defendant is obligated to implement the procedure for ownership transfer registration to the plaintiff in accordance with the agreement of this case.

In regard to this, the defendant asserted that the defendant's delay, which is the creditor of the plaintiff, withdrawn the repayment deposit of this case on November 16, 1999, and there is no deposit for repayment of the secured obligation of this case not later than the date of closing argument of this case, and that the plaintiff's assertion is groundless. If the secured obligation of this case is extinguished because the repayment deposit of this case is recognized as valid, the defendant's claim for unjust enrichment against the plaintiff should be recognized, and accordingly, the plaintiff's repayment of unjust enrichment against the defendant should be done beforehand or simultaneously, but it is possible to accept the claim of this case.

(c) Markets:

(1)The deposit for repayment takes effect upon the receipt of the deposited goods by the depository officer’s consignment disposition and the receipt of the deposited goods by the custodian (Supreme Court Order 72Ma401 Decided May 15, 1972) and takes effect upon the extinguishment of the obligation (Supreme Court Order 72Ma401 Decided May 15, 1972). The depositor may recover the deposited goods until the creditor approves the deposit, notifies the depository to receive the deposited goods, or becomes final and conclusive by the effective judgment of the deposit. In this case, it shall be deemed that the deposited

(2) As seen earlier, inasmuch as the Busan District Court Decision 97Na482 delivered on November 7, 1997, which judged the validity of the instant repayment deposit, became final and conclusive, the Plaintiff’s right to claim the repayment of the deposit becomes final and conclusive due to the substantial extinguishment of the Plaintiff’s right to claim the repayment of the deposit. Thus, even if the Plaintiff’s failure to seize the Plaintiff’s right to claim the repayment of the deposit already extinguished and then paid the deposit, it shall be deemed null and void as it does not fall under the requirements for the repayment of the deposit under Article 489(1) of the Civil Act. Therefore, the effect of the secured obligation of the instant agreement upon the instant repayment deposit shall be deemed as being maintained

(3) However, it is difficult to conclude that the withdrawal of the deposit money of this case to the head of the Si/Gun/Gu in accordance with the above bond seizure and assignment order is unlawful under the Deposit Act, since the existence of the final judgment cannot be known unless the plaintiff and the defendant submit a certified copy, etc. of the previous final judgment. Therefore, it is reasonable to view that the plaintiff, as a malicious beneficiary, had been aware of unjust enrichment in the process of receiving the attachment and assignment order of the above deposit money of this case, the return of the deposit money of this case to the head of the Si/Gun/Gu in accordance with the above bond seizure and assignment order of this case is unlawful under the Deposit Act. Therefore, the plaintiff obtained profits equivalent to the amount of the deposit amount (such as 32,100,000 won) extinguished without legal cause due to the recovery of the deposit money of this case and thereby caused damages to the defendant who is the deposited person to lose the right to claim the payment of deposit money of this case. Furthermore, it is reasonable to view that the plaintiff had a duty to return the above amount of unjust enrichment to him from 15.

(4) If so, barring any other circumstance, the Defendant is obligated to implement the procedure for transferring ownership of each of the instant real estate based on the instant collateral agreement at the same time with the Plaintiff’s payment of the amount of KRW 32,100,000 and the legal interest thereon, barring any other circumstance.

3. Defendant’s assertion and judgment

A. The defendant asserts that if the secured obligation is repaid under the agreement of this case, the part that the defendant directly executes the registration of ownership transfer to the plaintiff is forged by any ar.

The above assertion is without merit, since there is no evidence to prove that the part of the defendant's assertion in the above agreement was forged.

B. The Defendant asserts that, even if the Plaintiff may seek the implementation of the procedure for ownership transfer registration directly to the Defendant pursuant to the instant agreement, the right to claim ownership transfer registration under the said agreement was not exercised within 10 years from the date of establishment, and the period of extinctive prescription has expired.

In this case, the plaintiff's right to claim for the transfer registration of ownership under the agreement of this case is a right arising under the condition that the plaintiff reimburses the defendant with the amount of KRW 17 million,500,000,000, which is the secured debt. Therefore, unless there are other circumstances, the initial date of the extinctive prescription for the right to claim the transfer registration of ownership shall be April 30, 1997 where the repayment deposit of this case, which is proved to be effective by the previous final judgment, was deposited, and it is apparent that the ten-year extinctive prescription has not lapsed since the above assertion is without merit.

4. Conclusion

Thus, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment below is unfair with a different conclusion, the plaintiff's appeal is partially accepted and the judgment of the court below is modified as per Disposition.

Judges Yuwon-won (Presiding Judge)