C&C Captain, Inc., Ltd. (Attorney Kim Jin-hun, Counsel for the plaintiff-appellant)

C&PP Co., Ltd.

Daegu District Court Order 2009 Chicago511 dated December 14, 2009

The appeal of this case is dismissed.

1. Basic facts

According to the records of this case, the following facts are substantiated.

A. On September 26, 2008, the respondent filed a lawsuit against the applicant (S&C Co., Ltd.) for the issuance of land and the name of the building at the Daegu District Court Branch Branch of 2008Gahap578, and received a favorable judgment from the above court on September 26, 2008.

B. The applicant, who is dissatisfied with the above judgment of the first instance court, filed an appeal with the Daegu High Court No. 2008Na8332, and filed an application for suspension of compulsory execution based on the executory exemplification of the judgment of the first instance court as the Daegu District Court Branch 2008Kaga397, and the above court rendered a ruling accepting the above condition on Oct. 7, 2008 on the deposit of KRW 100 million as security. Accordingly, on Oct. 7, 2008, the applicant deposited KRW 100 million as the above court No. 1045 (hereinafter “instant security”).

C. After that, as the applicant withdraws the appeal of the above case No. 2008Na8332 on April 10, 2009, the above judgment No. 2008Gahap578 became final and conclusive.

D. Accordingly, the respondent filed an order of seizure and assignment of claim against KRW 80,33,333 of the applicant’s claim for payment of deposit money against the security of this case with the claim pursuant to the above 2008Gahap578 with the Daegu District Court Branch Branch 2009TTT 1256 as the preserved right, and received a decision of citing it on April 16, 2009 from the above court.

E. Since then, the Captain filed a claim seizure and collection order against the respondent on November 11, 2009, with the Seoul District Court Branch of the Daegu District Court Branch of 2009TTTTTTT 2009TTTT 3644, and the respondent filed a claim, such as principal, based on the original copy of the judgment holding the executory power over the claim for monthly rent payment against the above court 2008TTT 14563, and the respondent filed a claim seizure and collection order against KRW 68,146,848, out of the claim for deposit payment against the security of this case.

F. On November 17, 2009, the subrogation applicant filed an application with the respondent for a peremptory notice of the exercise of rights and the cancellation of security against the instant security on behalf of the applicant. On November 23, 2009, the above court sent a peremptory notice to the respondent within seven days from the date of receipt of the peremptory notice to the respondent to exercise his/her rights as a person entitled to the instant security on November 25, 2009. The respondent received the above peremptory notice on November 25, 2009.

G. On November 30, 2009, the respondent submitted a “report on the exercise of rights” to the effect that he/she exercised his/her rights as a secured party by filing an application for a seizure and assignment order of claims with the above court as to the instant security and by receiving a decision citing it.

H. On December 14, 2009, the court of first instance rendered a decision that the period of exercise of the right to the instant security has expired, and thus, the court revoked it against KRW 68,146,848 of the instant security.

2. Determination

The security for the suspension of compulsory execution against the judgment of the provisional execution sentence is to secure the damage claim in a case where the creditor suffers damage due to the suspension of compulsory execution itself (see Supreme Court Order 79Ma74, Nov. 23, 1979, etc.). Therefore, the exercise of the right to the security must be a judicial claim against the damage claim arising from the suspension of compulsory execution itself, and it refers to the case where the creditor exercises his right, such as the institution of a lawsuit, payment order, or settlement application, as to the secured claim.

In light of the above legal principles, the respondent cannot be deemed to exercise the right to claim damages secured by the deposit, solely on the ground that the respondent applied for the seizure and assignment order of the claim against the security of this case and received a decision to accept it. There is no evidence to acknowledge otherwise that the respondent exercised the right as the secured right holder within seven days from the date of receipt of the above written peremptory notice.

3. Conclusion

Therefore, the Respondent's petition of this case is justified under Article 125 (3) of the Civil Procedure Act, since the Respondent's petition of this case is justified in conclusion, and the appeal of this case is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

Judges Lee Dong-jin (Presiding Judge) and Lee Jin-jin