2. At the preliminary claim extended at the trial, the defendant shall pay to the plaintiff the amount equivalent to 3,687,485 won and the amount equivalent to 5% per annum from July 27, 1984 to the date of full payment.

3. The plaintiff's remaining conjunctive claims are dismissed.

4. The costs of the lawsuit shall be divided into three parts through the first and second trials, and the remainder of which is the remainder of the defendant shall be borne by the plaintiff.

5. The above two paragraphs can be provisionally executed.

The judgment that the lawsuit costs shall be borne by the defendant and provisional execution declaration

The defendant shall pay to the plaintiff the amount of 7,689,635 won and the amount from July 27, 1984 to the delivery date of the complaint of this case at the rate of 25 percent per annum from the day after the day of completion to the day of full payment.

The court costs are assessed against the defendant in both the first and second trials and the provisional execution declaration (the plaintiff added the conjunctive claim to the first instance court).

The Defendant’s legal representative deposited KRW 7,890,810 for the repayment of the obligation to the Defendant. The Defendant’s legal representative, who was the mortgaged creditor in the auction procedure of the collateral for the same obligation, was paid a successful bid price, but failed to recover the said deposit by receiving the deposit again on August 9, 1984. Nonparty 1 and the Plaintiff made a notarial deed in collusion with Nonparty 1 by creating a notarial deed under the premise that the Plaintiff had a claim for a promissory note deposit against Nonparty 1, and was issued a seizure of the claim for the collection of the said deposit, but it was no longer effective. Accordingly, the Plaintiff’s claim for the damages of this case was made against the Defendant, and this is solely based on the trust that Nonparty 1 had the Plaintiff conduct litigation, and therefore, it is argued that the lawsuit of this case should be dismissed. However, the Plaintiff did not have any false claim against Nonparty 1 or false claim, or the Plaintiff did not have any evidence to acknowledge that the Plaintiff had received the trust from Nonparty 1 and did not have any reason to accept the Defendant’s lawsuit.

2. Judgment on the merits

(A) Facts

On December 6, 1980, the Defendant lent 6,50,000 won to Nonparty 1 with interest rate of 6% per annum on June 6, 1981, and completed the registration of creation of a neighboring mortgage with the maximum debt amount of KRW 8,00,000 for the land and above ground houses owned by Nonparty 1 as collateral. Nonparty 1 did not repay the above debt, and the Defendant filed an application for voluntary auction with the Suwon District Court on September 2, 1983 (No. 83l295555), on December 27, 1983, and the auction procedure was completed, and the above site and house were mortgaged for KRW 7,94,875 won on June 6, 1981; Nonparty 1 was dismissed as a sum of the principal and debt due to voluntary auction at the court on June 9, 1984; 6,500,000 won; 1947,1987,2087,7194,7,71947,7,7,7, and 194.14.

On June 12, 1984, the defendant served a notice of receipt of deposit with the court on June 12, 1984 and served a deposit official on July 9 of the same year. On the other hand, on the basis of the original copy of the promissory note with a face value of 8,500,000 won on the non-party 1, the plaintiff applied for the seizure of claim and assignment order (No. 84H273,2774 of the Suwon District Court Act) on July 20 of the same year, and issued the attachment and assignment order ( July 21, 1984) on the following day. On the other hand, the original copy of the order was served with the third debtor on July 24 of the same year, the defendant was present on the date of the Suwon District Court's delivery of deposit amount and received the amount of claim 7,698,635 won on July 27 of the same year, and the parties did not dispute between the non-party 1 and the court on August 18, 19, 89.

(B) Judgment as to the main claim

According to the plaintiff's assertion, on July 21, 1984, the plaintiff was served on the third debtor with the attachment and assignment order for the right to claim the deposit of the non-party 1 to whom the order was issued, and the execution procedure for the right to claim the deposit was terminated. On July 27, 1984, the defendant received 7,698,635 won total of the principal and interest for the non-party 1's claim amounting to KRW 6,50,635 won on the date of the payment of the successful bid price. Thus, although the claim amounting to KRW 6,500,000 which was secured by the mortgage was already extinguished, the plaintiff filed a claim for the withdrawal of the deposit of the non-party 1 to receive it again on August 9 of the same year and received it. The plaintiff did not receive all the claim amount of KRW 7,890,810 which was already issued with the attachment and assignment order for the plaintiff, and therefore, the defendant is liable for damages to the plaintiff's claim.

In case where a debtor made a deposit for repayment, when the creditor has notified the depository of the receipt of deposited goods to the depository, the effect of the repayment of the cause of the deposit becomes final and conclusive, so in this case, the debtor or the depository for repayment cannot make a claim for recovery of deposited goods (Article 489(1) of the Civil Act). As seen earlier, in the above case, the non-party 1 made a deposit for repayment on June 9, 1984, and the defendant who is the creditor on July 9, 1984, notified the depository (U.S. District Court) to receive the deposited money, and it is obvious that the assignment order was delivered to the third debtor on July 24, 1984, after being issued with the whole order for the right to recovery deposited goods, the right to claim recovery of the deposited goods of non-party 1 had already been extinguished, and there is no entire claim.

Therefore, since the Plaintiff’s assignment order is naturally null and void due to the absence of the entire claim, even if the Plaintiff failed to receive the same deposit due to the Defendant’s act of paying the deposit money, it cannot be said to constitute a tort against the Plaintiff. Therefore, the Plaintiff’s claim is groundless.

(C) Determination on the conjunctive claim

Although the plaintiff was at the trial for repayment of non-party 1's deposit and the defendant's claim for collateral security which was the cause of the application for voluntary auction was extinguished by the defendant's declaration of intention to receive the deposit money, the defendant again received the successful bid price on July 27, 1984. This constitutes a tort against non-party 1. As such, the plaintiff added the claim for damages due to the above tort to the defendant in subrogation of the non-party 1, the non-party 1, who is insolvent. Thus, the plaintiff added the compensation amount for damages for the above tort to the defendant in lieu of the non-party 5's 4-6, the evidence No. 8-1, No. 8-1, No. 6-3, No. 9-4, the court below's judgment and the non-party 2, the non-party 3, and the non-party 4's testimony, and the non-party 1, the non-party 1, the non-party 1 and the non-party 1, the non-party 5-party 1, the debtor's debt 98.

Meanwhile, according to the above evidence, if the defendant received the notification of receipt of deposit from the court during the auction procedure after the application for voluntary auction of this case and received the notification of receipt of deposit money to the same court, it shall be deemed that the claim for mortgage which is the basis of voluntary auction has expired. Thus, even if the date of issuance of the successful bid price was later notified, even if the court did not receive it, and there is a title of debt other than the household mortgage bond, it should be received after the execution clause was granted and taking the procedure of seizing the claim for payment of the successful bid price by the non-party 1. However, it is clear that the defendant received the payment of the successful bid price of 7,698,635 won in advance for the purpose of receiving other claims than the mortgage claim. Thus, the defendant's receipt of the successful bid price is a tort that causes damage to the non-party 1 by misunderstanding the provisions of the Civil Code concerning the deposit of the defendant, and the defendant is liable for compensation for damage to the plaintiff who is the subrogated creditor of the non-party 1.

Accordingly, the defendant defense that his claim against the non-party 1 was set off. The plaintiff's act is a intentional tort. Since the plaintiff's set-off against the claim for damages caused by such intentional tort is legally prohibited, the defendant's set-off defense can not be permitted. Thus, the public health unit and the creditor of the mortgage have raised an application for voluntary auction based on the mortgage and auction for the mortgaged object. If the debtor has made the repayment deposit and the creditor has notified the receipt of the deposited article, it is difficult to understand the legal effect of the notification of receipt of the deposited article (the mortgage claim shall be extinguished by the notification of receipt of deposited article even before receiving the deposited money) as the general public. The creditor who has received the notification of the date of issuance of the deposited money prior to receiving the deposit money, and the creditor who has other debt except the mortgage claim which is the basis of the voluntary auction, who has received the deposit money, would be able to receive the deposit money from the court, and thus, he would be able to receive the deposit money by offsetting the plaintiff's intentional auction rather than by receiving it.

Therefore, after examining the defendant's automatic claim amount that became due on July 27, 1984, which was due on the time of the tort of this case, the defendant's automatic claim amount was examined. In full view of Gap's evidence 5,6, Eul's evidence 2 through 4, Eul's evidence 16, Eul's evidence 7-16, and non-party 3's testimony, the defendant as to non-party 1,

(1) Of the gold 1,00,000 won and the interest accrued thereon from June 6, 1981 to July 9, 1984, the sum of KRW 1,231,875 of the Defendant’s claim amounting to KRW 2,231,875 (the claim pursuant to Suwon District Court Decision 83Da158 decided May 2, 198)

(2) From among the interest accrued at the rate of 25 percent per annum from July 26, 1981 to July 9, 1984 on 1,020,000 won and 380,000 won, the Defendant may claim 280,000 won per annum from June 24, 1981 to July 9, 1984 on 25 percent per annum from the interest accrued at the rate of 125,430 won, 475,00 won, the Defendant may claim 25 percent per annum from the interest accrued at the rate of 34,825,000 won per annum from August 13, 1981 to July 9, 1984 on 38,000 won with the aggregate of the interest accrued at the rate of 34,825,750,000 won per annum, the Defendant may claim 12537,271,271,7500 won per annum.

In addition to the above bonds, the defendant asserts that, in addition to the above bonds, the loan amounting to KRW 362,00 and interest accrued thereon, KRW 1,520,00 and interest accrued thereon out of the loan dated April 22, 1981, and KRW 392,00 and interest accrued thereon out of the loan dated April 22, 1981, the loan amounting to KRW 392,00 among the loan dated April 22, 1981, the loan amounting to KRW 24,765 have not been repaid out of the mortgaged bond amount, and there is no evidence to acknowledge the above three loan claims against Nonparty 1, and the part of the loan amounting to the above three loans was extinguished due to the lack of the successful bid price. As seen earlier, the defendant's offset against the above loans amount to KRW 4,50,00 and the remainder of the deposit amount is justified.

Thus, 7,689,635 won of the defendant's claim for damages caused by the defendant's tort shall be deemed to have been extinguished on an equal amount due to the defendant's expression of intent of offset within the limit of 4,002,150 won of the above automatic claim, so the defendant shall be liable to pay to the plaintiff the remaining amount of 3,687,485 won and damages for delay in civil affairs at the rate of 5% per annum from July 27, 1984 to the full payment day (the plaintiff shall claim damages for delay at the rate of 25% per annum, but in this case, it is reasonable for the defendant to dispute about the existence or scope of the damages obligation, so the defendant shall not apply to the plaintiff's claim added to the above automatic claim within the scope of the above recognition, and therefore, it shall be dismissed as the remainder is without merit.

3. Conclusion

Therefore, the original judgment dismissing the plaintiff's primary claim is justified, and therefore, the plaintiff's appeal is dismissed, and since the plaintiff's conjunctive claim added in the trial is with merit to the extent recognized above, it is ordered to pay it as stated in the Disposition No. 2, and the remainder is dismissed as without merit. It is so decided as per Disposition by applying Articles 89, 92, 96, and 199 of the Civil Procedure Act with respect to the imposition of litigation costs and the declaration of provisional execution.

Judges Kim J-ho (Presiding Judge)