[2] Whether the pledgee of the “claim such as deposit” under Article 2 subparag. 4 of the former Depositor Protection Act falls under the “depositor, etc.” under Article 2 subparag. 4 of the same Act (negative), and in a case where the pledgee exercises his right to claim insurance against the “depositor, etc.” under Article 31(1) of the former Depositor Protection Act, whether the pledgee can deduct his obligation owed to the insured financial institution under Article 32(1) of the same Act (negative)

[3] Where an insured financial institution is unable to exercise its claim against a depositor, etc. and it cannot offset the obligation to return deposits against a depositor, etc. with its automatic claim, whether the depositor, etc. may deduct the amount of obligation owed by the insured financial institution from the obligation to return deposits against the depositor, etc. pursuant to Article 32(1) of the former Depositor Protection Act (negative)

[4] Whether the Korea Deposit Insurance Corporation may set off claims such as deposits against an insured financial institution of depositors, etc. and obligations owed by a pledgee such as deposits against an insured financial institution by Article 35-6 of the former Depositor Protection Act (negative)

[5] The meaning of Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings where an obligor is deemed to be reasonable to resist the existence or scope of the obligation

[2] The pledgee of "claims such as deposits" under Article 2 subparagraph 4 of the former Depositor Protection Act (amended by Act No. 6807 of Dec. 26, 2002) shall not be deemed to fall under the "depositor, etc." under Article 2 subparagraph 3 of the same Act since he/she does not fall under the "depositor, etc." under subparagraph 2 of the same Article since he/she does not fall under the "depositor, etc." under subparagraph 3 of the same Article. In cases where the pledgee of "claims such as deposits, etc." exercises his/her right to claim insurance under Article 31 (1) of the Depositor Protection Act of the "depositor, etc.", the pledgee's obligation to the insured financial institution shall not be deducted under Article 32 (1)

[3] Article 32(1) of the former Depositor Protection Act (amended by Act No. 6807 of Dec. 26, 2002) provides that the amount calculated by deducting the total amount of debts owed to each insured financial institution by depositors, etc. from the total amount of deposits of depositors, etc. as of the date of payment announcement of insurance money shall be insurance money. Even if depositors, etc. are liable to an insured financial institution, if the insured financial institution is unable to exercise its claims against depositors, etc. and it is impossible to offset them against the obligation to return deposits to depositors, etc. on its automatic claim, the amount of debts owed to the insured financial institution by depositors, etc. shall not be deducted.

[4] Article 35-6 of the former Depositor Protection Act (amended by Act No. 6807 of Dec. 26, 2002) provides that "the Corporation may set off on behalf of depositors, etc. claims such as deposits of depositors, etc. (excluding claims such as deposits offered by depositors, etc. to an insured financial institution as security for others) as of the date of payment announcement of insurance money against depositors, etc. and obligations owed by depositors, etc. to the insured financial institution concerned (excluding obligations guaranteed by depositors, etc.)." Since claims such as deposits, etc. are not included in "depositors, etc." under the Depositor Protection Act, a pledgee of claims such as deposits, etc. are not included in "depositors, etc." and therefore, the Korea Deposit Insurance Corporation may not set off claims such as deposits

[5] Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings provides that "if it is deemed reasonable for an obligor to resist the existence or scope of the obligation," refers to a case where there is a reasonable ground for the obligor's argument as to the existence or scope of the obligation. Thus, the issue of whether it is unreasonable to resist as above is related to the fact-finding and evaluation by the court concerning the pertinent case.

The costs of appeal are assessed against the defendant.

1. Article 2 subparagraph 3 of the Depositor Protection Act (amended by Act No. 6807 of Dec. 26, 2002) defines the term "depositors, etc." as the holder of deposits and other claims against insured financial institutions; Article 2 subparagraph 4 of the same Act defines the term "deposits, etc." as the principal, principal, interest, profits, insurance money and other monetary claims which depositors, etc. hold against insured financial institutions through financial transactions such as deposits; and Article 31 (1) 2 of the same Act defines the term "deposits, etc." as the "deposits, etc." against each insured financial institution; therefore, Article 31 (2) of the same Act provides that the term "depositors, etc." that may claim the payment of insurance money to the Korea Deposit Insurance Corporation pursuant to Article 31 (1) of the same Act refers to the person who has deposits and other claims against insured financial institutions through financial transactions under subparagraph 2 of

According to the records, the non-party 1 borrowed 1.1 billion won from the Dong-dong Mutual Savings and Finance Company (hereinafter "Dong-dong Mutual Savings and Finance Company") on October 4, 2000 and deposited 1.09,965 million won, which is part of them, to the Dong-dong Mutual Savings and Finance Company (hereinafter "Dong-dong Mutual Savings and Finance Company") and then deposited 1.1 billion won in the Dong-dong Mutual Savings Depository (hereinafter "the deposit of this case"). Thus, the non-party 1 is a person holding claims, such as deposits, against Dong-dong Mutual Savings and Finance Company, and falls under the "depositor, etc."

The court below did not clearly decide whether the non-party 1 constitutes the "depositor, etc." under the Depositor Protection Act, but held that the non-party 1 constitutes the "depositor, etc." under the Depositor Protection Act, and decided on the plaintiff's claim of this case and the defendant's assertion and defense, which are the pledgee of the deposit claim of this case. The court below's decision is erroneous in the misunderstanding of facts against the rules of evidence, misunderstanding of legal principles as to "depositor, etc." under the Depositor Protection Act, and misunderstanding of legal principles as to "depositor, etc." under the Depositor Protection Act,

2. The pledgee of the "deposit and other claims" under Article 2 subparagraph 4 of the Depositor Protection Act is not a person holding a "deposit and other claims" through financial transactions under subparagraph 2 of the same Article with respect to an insured financial institution, and therefore cannot be deemed to fall under the "depositor, etc." under subparagraph 3 of the same Article, and even where the pledgee of the "deposit and other claims" exercises his right to claim insurance under Article 31 (1) of the Depositor Protection Act with respect to the "depositor, etc.", the pledgee shall not deduct his obligation owed to the insured financial institution under Article 32 (1) of the same Act.

In the same purport, the decision of the court below which rejected the defendant's assertion that the plaintiff, the pledgee of the deposit claim of this case, as of the date of the public notice of the payment of the insurance money of this case, shall deduct the amount of the debt owed to the Dongdong Treasury from the deposit amount of this case pursuant to Article 32 (1) of the Depositor Protection Act is just, and it is not erroneous in the misapprehension of legal principles as to the application of Article 3

3. Article 32(1) of the Depositor Protection Act provides that an insurance money shall be calculated by deducting the aggregate amount of debts that depositors, etc. are liable to the insured financial institution from the aggregate amount of claims such as deposits of depositors, etc. as of the date of announcement of payment of insurance money. If an insured financial institution cannot exercise its claims against depositors, etc. even if depositors, etc. are liable to the insured financial institution, and it is impossible to offset them against the obligation to return deposits to depositors, etc. with automatic claims, the amount of debts that depositors, etc. are liable to the insured financial institution

The court below held that the non-party 1 is liable for the principal and interest of loan amounting to KRW 1,23,210,729 as of the date of the notice of the payment of the insurance in this case to the Dongia Treasury, and that the non-party 1 who leased his name to the Dongia Treasury to non-party 2 in order to avoid Article 37 (1) of the former Mutual Saving and Finance Company Act and to get the loan from the Dongia Treasury, the non-party 2 is liable for damages equivalent to the loan amount to the Dongia Treasury. Thus, the defendant's assertion that the defendant did not have any insurance money to be paid to the plaintiff. Even if the plaintiff who was the pledgee did not withhold objection to the establishment of the right to the deposit claim in this case, even if he knew of the ground that occurred to the non-party 1 as the pledgee at the time of the consent, or did not know by gross negligence, it did not err in the misapprehension of legal principles or in the misapprehension of legal principles as to the loans that the non-party 1 received from the Dong Treasury and the non-party 2 in this case.

4. Article 35-6 of the Depositor Protection Act provides that "the Corporation may set off claims such as deposits of depositors, etc. (excluding deposits, etc. offered by depositors, etc. to the insured financial institution as security for others) and obligations of depositors, etc. (excluding surety obligations) against the insured financial institution concerned as of the date of announcement of payment of insurance money on behalf of depositors, etc." (excluding deposits, etc.). Since claims such as deposits are not included in "depositors, etc." under the Depositor Protection Act, the Korea Deposit Insurance Corporation may not set off claims such as deposits, etc. against the insured financial institution of depositors, etc. and obligations of pledgees, etc. against the insured financial institution

Although the court below, based on Article 35-6 of the Depositor Protection Act, failed to decide on the defendant's defense that offsets the claim against the plaintiff by the deposit claim of this case and the claim against the plaintiff of the Donga Fund, in light of the above legal principles, the above defense should be rejected, and the above error of the court below did not affect the conclusion of the judgment, and thus, the ground of appeal on this point

5. According to the records, with respect to the defendant's assertion that the plaintiff offsets the claim for the deposit insurance proceeds of this case on December 18, 200 and the claim for a loan with a bill discount of KRW 3 billion against the plaintiff of the East Asia Treasury, the court below's findings of fact and determination that rejected the above claim on the ground that there is no evidence to acknowledge that the plaintiff had declared an intention of offset as alleged in the defendant, and there is no error of law such as misunderstanding of facts and misunderstanding of legal principles

6. The court below rejected the defendant's defense of offsetting the claim against the plaintiff by subrogation of the trustee in bankruptcy of the Dong Asia's depository and the claim against the plaintiff of the Dongia depository, on the ground that even though the defendant becomes a bankruptcy creditor of the Dongia depository due to the payment of the insurance proceeds to other depositors of the Dongia depository, the trustee in bankruptcy cannot exercise the right of offset against the claim against the plaintiff of the Dongia depository, in order to preserve the bankruptcy claims against the Dongia depository, without going through bankruptcy procedures.

In light of the records, the above offset against the defendant's above offset against the defendant cannot be deemed to include the argument that the defendant exercises the right of offset on behalf of the trustee in bankruptcy of the Fund of East Asia when the defendant pays insurance money in response to the plaintiff's claim in this case. Furthermore, even if the defendant's domestic family's ground of appeal includes the argument that he exercises the right of offset on behalf of the trustee in bankruptcy of the Fund of East Asia as the right of offset, as alleged above, as long as the claim in the defendant's ground of appeal is asserted, the preserved claim should be exercised in order to exercise the right of subrogation pursuant to Article 404 (2) of the Civil Code. If the due date is not arrived, the right of subrogation can only be exercised with the court's permission or the act of preserving the debtor's right. The above right of claiming the return of unjust enrichment may still be paid with the claim itself, so the due date has not yet arrived, which results in decrease in the exercise of the above right of offset against the defendant's property, and thus it cannot be said that the judgment below's ground of appeal is justified.

7. According to the records, the court below's decision that ordered the defendant to pay insurance money equivalent to the amount of the deposit of this case is just, and the ground of appeal that the court below accepted the money exceeding the amount of the claim to be exercised by the plaintiff is not acceptable, since the plaintiff's principal and interest of the loan of this case, which is the secured claim of the pledge of this case, as of the public notice date of the payment of the insurance money of this case.

8. Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings provides that "if it is deemed reasonable for an obligor to resist the existence or scope of the obligation," refers to a case where there is a reasonable ground for the obligor's argument as to the existence or scope of the obligation. Thus, the issue of whether the said dispute is unreasonable can be deemed as a matter of fact-finding and its evaluation by the court concerning the pertinent case (see, e.g., Supreme Court Decisions 99Da20155, Feb. 25, 200; 9Da26924, Sept. 8, 200).

In light of the above legal principles and records, the judgment of the court below ordering the payment of damages for delay of 20% per annum, which is the statutory interest rate under the main sentence of Article 3 (1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 2003) enforced on June 1, 2003, since the amended "Rules on Legal Interest Rate" (amended by Presidential Decree No. 17981 of May 29, 2003), is acceptable, and there is no error in the misapprehension of legal principles as to damages for delay as argued in the Grounds for Appeal.

9. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)