[2] The trustee shall deliver the trust property to the truster after delivering the trust property to the beneficiary through the final calculation in accordance with the agreement with the truster upon termination or termination of the trust contract. In a case where it is difficult to ascertain who is a legitimate beneficiary due to a dispute, whether the trustee may deposit the trust property with the trustee on the ground that the creditor is unknown under the latter part of Article 487 of the Civil Act (affirmative)

[2] If, at the time of termination or termination of a trust deed between a truster and a trustee, the trustee agreed to deliver the trust property to the beneficiary after the delivery of the trust property, and if there exists any remaining property, the trustee shall return the trust property to the truster in accordance with the procedure. However, if there is a dispute as to whether the trustee is a beneficiary entitled to receive the trust property, the trustee shall pay the trust property to either the beneficiary or the truster depending on whether the person is a legitimate beneficiary. If, even if the trustee fulfills his/her fiduciary duty, it is difficult to ascertain who is the beneficiary or the truster, the trustee constitutes “where the obligee cannot be ascertained without negligence,” and thus, the trustee may deposit the trust property for repayment on the ground of the creditor’s uncertainty under the latter part of Article 487 of the Civil Act.

1. The court below held that the plaintiff's claim against the Industrial Bank of Korea is a right to claim the return of trust property arising from the termination of a retirement trust contract, and the defendant's claim against the Industrial Bank of Korea is a right to claim the return of retirement installment payment under a retirement trust contract as a beneficiary of a retirement trust contract, and thus, it cannot be confirmed who the creditor is because the Industrial Bank of Korea stated such circumstance as the reason for deposit, although it is not the same claim but the defendant's claim against the Industrial Bank of Korea, is a beneficiary of a retirement trust contract. Thus, the court below determined that the plaintiff and the defendant's claim claiming confirmation of the right to claim the return of deposit money are without merit, on the premise that the plaintiff's claim against the Industrial Bank of Korea is not a beneficiary of the retirement trust contract, but a claim against the plaintiff and the defendant's claim against the Industrial Bank of Korea is a beneficiary of the retirement trust contract. The plaintiff's claim is not a specific obligation

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. In the judgment of the court below, the obligation which is the object of the repayment deposit must be the existing final and conclusive obligation, but its meaning is merely that the future obligation or uncertain obligation cannot be the object of the repayment deposit in principle, and it does not mean that each obligee’s claim against the obligor should be the same obligation. Therefore, even if the Plaintiff’s right to claim the return of the remaining property of trust and the Defendant’s right to claim the payment of retirement installment payment are not the same, the Industrial Bank of Korea, the obligor,

B. The latter part of Article 487 of the Civil Act refers to cases where, objectively, the obligee or the right to receive reimbursement exists, it is objectively impossible for the obligee or the right to receive reimbursement to identify who is the obligee despite the obligor’s due care (see, e.g., Supreme Court Decision 2007Da35596, Oct. 23, 2008). In cases where the trustor and the trustee agreed to deliver the trust property to the beneficiary after the final settlement of accounts when the trust contract is terminated or terminated and return the residual property to the truster, the trustee must deliver the trust property to the beneficiary and return the residual property to the truster. However, if there is a dispute as to whether the trustee is a beneficiary with the right to receive the trust property, the trustee is obliged to pay the trust property to either the beneficiary or the truster, depending on whether the person is a legitimate beneficiary or the truster. If it is impossible for the trustee to know who is the beneficiary or the truster, even if with due care of the manager, the obligee cannot be known without fault, and thus, the trustee can make a deposit due to the obligee.

C. Examining the instant case, the Industrial Bank of Korea, a trustee, has a dispute over whether the Defendant is a legitimate beneficiary, and thus, even if the fiduciary duty was fulfilled by a good manager, cannot be known as the Plaintiff and the Defendant, and thus, the Industrial Bank of Korea may deposit its remaining assets for repayment on the ground of the creditor’s uncertainty.

D. Nevertheless, the lower court determined that, solely on the grounds that the nature of each claim against the Plaintiff and the Defendant differs, the obligation itself, which is the object of the deposit for repayment, is not specified and thus, the deposit for repayment is not effective. In so doing, the lower court erred by misapprehending the legal doctrine on the deposit for repayment, which affected the conclusion of the judgment.

3. Therefore, the part concerning the principal lawsuit and the part concerning the main counterclaim in the judgment below shall be reversed, and this part of the case shall be 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 Min Il-young (Presiding Justice)