[2] In a case where a right holder who received a peremptory notice of exercise of his/her right by means of a lawsuit, such as filing a lawsuit, but the scope of the right holder's petition is limited to a part of the amount of a security deposit, whether the excess portion should be deemed as the consent of the right holder in the revocation of the security (affirmative), and in a case where the right holder, such as filing a lawsuit by the right holder before the expiration of the period for exercising his/her right or the revocation of the security becomes final and conclusive, but the exercise of right was never made due to the withdrawal of the lawsuit, etc., whether the consent of the right holder in the revocation of the security should be deemed to have been obtained (affirmative)

1. A. Article 125(3) of the Civil Procedure Act provides that the court shall, upon the application of the person who provided security after the completion of a lawsuit, urge the person who provided security to exercise his/her right within a given period, and if the person who provided security fails to exercise his/her right within the given period, the court may decide to revoke the security by deeming that the person who has the right to the security has consented to the revocation of the security. However, if the person who has the right to the security has exercised his/her right before the decision to revoke the security becomes final and conclusive, the court may decide to revoke the security by deeming that the person who has the right to the security has consented to the revocation of the security and cannot maintain the decision to revoke the security. The same applies to cases where a document certifying the exercise of right was submitted when the re-appeal was filed (see, e.g., Supreme Court Order 200Ma2407, Jul. 18, 200; Supreme Court Order 2015Ma8

Furthermore, this legal doctrine also applies not only to a case where a person holding a right to a security proves that he/she has exercised his/her right only when the re-appeal was made, but also to a case where a person holding a right to a security has extended the scope of the principal right by expanding the scope of the principal right by expanding the claim in a lawsuit before the decision becomes final and conclusive, but also to a case where he/she further proves it in the reappeal

B. Where a right holder who received a peremptory notice has exercised his/her right by means of a lawsuit, such as filing a lawsuit and filing an application for payment order, if the scope of the right holder’s claim is limited to a part of the amount of a security deposit, it shall be deemed that there exists an agreement on the cancellation of the security. As such, the court should revoke part of the security (see Supreme Court Order 2016Ma180, Jan. 13, 2017). Meanwhile, where it is deemed that the right holder exercised his/her right, such as filing a lawsuit by the right holder, before the decision on revocation of security becomes final and conclusive within the exercise period or before the decision on revocation of security becomes final and conclusive, but it is deemed that the lawsuit was withdrawn or withdrawn after the lapse of the exercise period, and thus, the consent of the right holder with respect to the cancellation of security should be deemed to have been obtained (see Supreme Court Order 208Ma60, Mar. 17, 2008).

Therefore, the application for cancellation of security was dismissed or the decision to revoke part of security was issued because it was recognized that the exercise of the right to the whole or part of the amount of security deposit was made. In a case where a person holding the right to security has reduced the claim in the lawsuit before the decision becomes final and conclusive and it was proved in the reappeal, the decision to revoke the application for cancellation of security or to revoke

2. A. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) The respondent filed a lawsuit against Vietnamesia Korea Co., Ltd. (hereinafter “Veneia Korea”) seeking the delivery of the instant land and building, and the judgment in the first instance court where a provisional execution declaration was attached (hereinafter “the judgment in the first instance”) was rendered.

(2) After filing an appeal against the judgment of the court of first instance on the instant judgment, the court of appeal rendered a decision to suspend compulsory execution (hereinafter “decision to suspend the execution of this case”) with the purport that “the compulsory execution based on the judgment of the court of first instance shall be suspended until the judgment of the appellate court is rendered, on condition that deposit KRW 1.5 billion as security is deposited” in the appellate court.

(3) On July 29, 2015, the applicant deposited 1.5 billion won as the principal deposit with the respondent as a third party on behalf of the Vietnamesa Korea (hereinafter “the instant deposit money”) and had the enforcement of the first instance judgment suspended (hereinafter “the instant deposit money”).

(4) On April 21, 2016, Vietnamesa Korea was sentenced to a judgment dismissing the appeal (hereinafter “instant appellate judgment”) at the above appellate trial, and the appeal by the Vietnamesa Korea against the said appellate judgment was dismissed, and the judgment of the first instance became final and conclusive as it is.

(5) The respondent filed a lawsuit against Vietnamesea Korea seeking restitution of unjust enrichment from the possession of the instant land and building (hereinafter “the first lawsuit of this case”) and received a judgment in favor of the respondent. After the said judgment became final and conclusive, the respondent was paid KRW 456,528,828 out of the amount of the security deposit of this case.

(6) The Respondent filed an application against the Respondent for the peremptory notice of the exercise of the instant right and the cancellation of the security. The Respondent who received the peremptory notice of the exercise of rights filed a second suit against the Respondent Korea for unjust enrichment arising from the possession of the instant land and building (hereinafter “instant second suit”). The Respondent extended the amount of KRW 40 million for the Respondent Co., Ltd. (hereinafter “Respondent”) during the appellate trial of the instant second suit (Seoul High Court 2016Na2089401), with respect to the Respondent Co., Ltd. (hereinafter “Respondent”), KRW 40 million for delay damages, and with respect to the Respondent International Asset Trust Co., Ltd. (hereinafter “Respondent”), KRW 70 million for delay damages.

B. Based on the foregoing factual basis, the lower court determined that: (a) on July 29, 2015, the Plaintiff’s decision to suspend the execution of the instant case’s first instance judgment became effective by depositing KRW 1.5 billion deposited in the instant security deposit; (b) the enforcement of the instant first instance judgment was suspended; and (c) the suspension of the execution was terminated upon the instant judgment rendered on April 21, 2016, the damage secured by the instant security deposit should be deemed as the damage caused by the suspension of the execution of the instant first instance judgment from July 29, 2015 to April 21, 2016.

Then, the court below determined that the respondent consented to the cancellation of the security, considering various circumstances, such as the respondent's above claim amount, the respondent's Daom's 190 million won with respect to the security deposit amount of this case and the Respondent's international asset trust amount of KRW 30 million with respect to the Respondent's international asset trust amount of KRW 520 million with respect to the Respondent's 30 million with respect to the Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's 520 million won with total exceeding KRW 190 million with respect to 330 million with respect to the Respondent's Respondent's Respondent's Respondent's Respondent's remainder

3. However, in light of the aforementioned legal principles and records, the lower court’s determination became unable to be maintained as it is.

A. According to the records, both the applicant who is a security security and the respondent who is a security right holder are dissatisfied with the order of the court below and then the respondent has filed a reappeal. On October 25, 2017, the respondent extended the purport of the claim to KRW 3,693,471,021 in the appellate court of the instant lawsuit on October 25, 2017, and submitted to the Supreme Court the application for modification of the purport of the claim and

Furthermore, according to the above written application for the amendment of the purport of the claim and the cause of the claim as of October 25, 2017, “damages occurred due to the suspension of execution of the judgment of the first instance from July 29, 2015 to April 21, 2016,” which is the damage secured by the security deposit of this case, is deemed to have decreased above KRW 190 million recognized by the court below as the amount of the exercise of the right at the court below in case of Daom, and in case of an international asset trust for the respondent, it seems to have increased above KRW 330 million recognized as the amount of the exercise of the right at the court below.

B. Therefore, the order of the court below that determined the scope of the Respondent’s exercise of rights on the basis of the Respondent’s claim amount before the amendment of the purport of the claim as above was no longer maintained. After remanding, the court below should re-calculated the scope of damages secured by the security deposit of this case by reflecting the above amendment of the purport of the claim

C. Meanwhile, the applicant asserts that “only to the extent of the exercise of rights within the period specified in the written peremptory notice on the exercise of rights, it shall be deemed that there exists a “exercise of rights” under Article 125(3) of the Civil Procedure Act. However, this is contrary to the legal principles as seen earlier, and is not acceptable.

4. Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)