[1] In a case where it is difficult for the Korea Securities Depository to confirm who is in custody, even if the Korea Securities Depository fulfilled its fiduciary duty, whether the deposit can be made on the ground of the creditor’s uncertainty (affirmative)

[2] Whether a depositor may choose the facts of the cause of deposit in the former and latter parts of Article 487 of the Civil Code in making a deposit for repayment (affirmative), and the standard for determining whether the cause of deposit constitutes a fact of cause of deposit

[3] Whether correction of the certificate of deposit, which adds the creditor's "Impossibility of receipt by the creditor" under the former part of Article 487 of the Civil Code, shall be allowed after making a deposit for repayment with the ground of deposit under the latter part of Article 487 of the Civil Code (negative)

[4] In the case of a relative uncertainty deposit, whether there is a benefit to seek confirmation of the right to claim the return of deposited goods against a third party, who is not the party to the deposit (negative)

[1] Where a stock company issues stock certificates to a preemptive right holder due to capital increase increase and other related Acts and subordinate statutes, the Korea Securities Depository may refuse to deliver the stock certificates to a third party, but even if a third party is not the owner or a third party, the Korea Securities Depository may not refuse to deliver the stock certificates if a third party has a right to possess the stock certificates on the grounds of deposit or any similar contract under the Civil Act, and the Korea Securities Depository is obligated to return the stock certificates to a third party, barring special circumstances. However, in cases where a third party claims that the third party has ownership on the stock certificates protected after the expiration of the period stipulated in the above protective deposit contract, and a third party is liable to return the stock certificates to the Korea Securities Depository, the Korea Securities Depository cannot refuse to deliver them. However, if the third party is not the owner or a third party’s right to possess the stock certificates on the grounds of a third party’s deposit, the Korea Securities Depository should not return the stock certificates to a third party. Thus, if the third party’s owner and a third party’s obligor are not known.

[2] The deposit is made under his/her responsibility and judgment, and the depositor can select the deposit for repayment, the deposit for execution, or the mixed deposit, depending on which he/she should make a decision to whom he/she should repay. In addition, in making a deposit for repayment, he/she may select which of the former and latter parts of Article 487 of the Civil Code as the cause of the deposit. Whether the deposit for repayment is a "deposit for repayment due to impossibility of receipt" under the former and latter parts of Article 487 of the Civil Code, and whether the deposit for repayment is a "deposit for repayment due to impossibility of receipt" under the latter part of the same Article or both characteristics must be objectively determined in light of the statement in the "legal provision" column and the "fact of cause of deposit.

[3] The correction of a deposit shall be permitted only to the extent that it does not harm the identity of the deposit when the error in the deposit is discovered after the application for deposit is accepted. Thus, it is not permissible to allow the deposit for repayment on the ground that it is "cases where the creditor cannot be identified without negligence" under the latter part of Article 487 of the Civil Code, but to add "the creditor's impossibility to receive" under the former part of the same Article in the fact of the cause of deposit, because it is not merely a correction of the error but rather a correction of the

[4] In the case of a relative uncertainty deposit, in order for one of the deposited parties to claim the withdrawal of the deposited goods to claim the withdrawal of the deposited goods, there is a final and conclusive judgment in favor of the other deposited parties to claim the withdrawal of the deposited goods or the claim for the withdrawal of the deposited goods against them. In such a case, there is no benefit of confirmation to claim the confirmation of the claim for withdrawal of the deposited goods against a third party who is not the

[1] Article 487 of the Civil Code / [2] Article 487 of the Civil Code / [3] Article 487 of the Civil Code / [4] Article 487 of the Civil Code

[1] Supreme Court Decision 2004Da37737 decided Nov. 11, 2004 (Gong2004Ha, 2005) / [2] Supreme Court Decision 2006Da74693 decided May 15, 2008 (Gong2008Sang, 844) / [3] Supreme Court Decision 94Da42693 decided Dec. 12, 1995 (Gong196Sang, 353) / [4] Supreme Court Order 99Ma4239 decided Nov. 30, 199 (Gong200Sang, 138)

Plaintiff Co., Ltd. (Law Firm Han Young, Attorneys Lee Gyeong-Gyeong et al., Counsel for the plaintiff-appellant)

Securities Depository and 2 others (Law Firm Doz. and 1 other, Counsel for the plaintiff-appellant)

Defendant 3 and eight others

Intervenor Co., Ltd. (Law Firm Squa, Attorneys Park Jong-chul et al., Counsel for the intervenor-appellant)

Seoul High Court Decision 2005Na74865 decided April 19, 2007

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are examined.

1. As to the assertion that the deposit of this case is not effective

A. Article 487 of the Civil Act provides, “If the obligee does not receive or is unable to receive reimbursement, the obligee may be exempted from his/her obligation by depositing the subject matter of reimbursement for the obligee.” In such cases, “where the obligee cannot be ascertained without negligence,” means cases where the obligee or the receiver is objectively in existence, but even if the obligor fulfills his/her fiduciary duty, it is impossible to identify who is subjective obligee.” Meanwhile, even if the obligee’s ownership is not known to a third party in a relationship with the Korea Securities Depository for the purpose of issuing share certificates for capital increase and so on, it constitutes a third party’s obligation to return the share certificates if the obligee is not known to a third party in a relationship with the Korea Securities Depository without fault. Therefore, even if the obligee and the obligor are not aware of the existence of the share certificates, the obligee and the obligor cannot be deemed to have any other party’s duty to return the share certificates if the third party’s ownership rights were not known to the Korea Securities Depository, the Korea Securities Depository and the Korea Securities Depository established between the obligor and the Korea Securities Depository.

According to the facts established by the court below, the board of directors of the defendant 2 was to issue 4,55,45 shares to each of the above 30-year old shares and to assign 4,455 shares to the defendant 3 corporation (hereinafter "the corporation of this case"), on May 25, 202, with the consent of 300,000 won to secure the principal and interest of the corporation of this case 40,000, 360,000 won to each of the above 20-year old shares shares issued by the defendant 2 to each of the above 3-year old shares depository, and to each of the above 3-year old shares order to return 60,000,000,0000 won to each of the above 3-year old shares order to each of the defendant 20,0000,0000,000

For this reason, it is reasonable to view that the instant company, the owner of the instant share certificates, concluded a pledge agreement with the Plaintiff on the shares, transferred the right to claim the return of the share certificates to Defendant 2 corporation in order to transfer the ownership of the instant share certificates to the Plaintiff, who is the pledgee, and obtained the consent of Defendant 2 corporation with a fixed date regarding the transfer of the right to claim the return of the share certificates. Accordingly, the instant company was unable to claim the return of the instant share certificates against Defendant 2 corporation. However, according to the records, the Defendant Depository did not know about the above pledge agreement between the Plaintiff and the instant company and the transfer of the right to claim the return of the share certificates against Defendant 2 corporation. The Defendant Depository was unaware of whether the instant share certificates should be returned to the Plaintiff, the instant company, the owner of the instant shares, and the Defendant 4 corporation, who was the owner of the instant company, who was the party to the instant contract to protect the instant share certificates, and it is difficult to view that there was negligence in failing to know. Accordingly, Defendant Depository was negligent in returning the instant share certificates to the effect of the instant deposit.

Although the court below's explanation of this part of its reasoning is somewhat insufficient, it is just to deem the deposit of this case lawful as a repayment deposit, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

B. The deposit is made under the responsibility and judgment of the depositor, and the depositor can select the deposit for repayment, the execution deposit, or the mixed deposit (see Supreme Court Decision 2006Da74693, May 15, 2008, etc.). In making the deposit for repayment, the deposit can be selected as the cause of the deposit under the former and latter parts of Article 487 of the Civil Act. As such, whether the deposit for repayment is the “deposit for repayment due to impossibility of receipt” under the former and latter parts of Article 487 of the Civil Act, and whether the deposit for repayment is the “deposit for repayment due to impossibility of receipt” under the latter part of the same Article or both characteristics must be objectively determined in light of the description in the “Article 487” column and the “fact of cause of deposit” column, etc.

According to the above facts, in making the deposit of this case, the defendant Depository stated the share certificate of this case to the effect that it is impossible to identify who is to return to the defendant 2 corporation, the company of this case, or the defendant 4 corporation, and did not state that the deposit was made for the cause of impossibility of receipt. Thus, the deposit of this case constitutes the deposit of this case where the defendant 2 corporation, the company of this case, or the defendant 4 corporation as the principal deposit, and it cannot be deemed that the deposit of this case constitutes the deposit of payment of this case, and it does not constitute the deposit of payment of this case as the principal deposit of the defendant 2 corporation, the company of this case, or the defendant 4 corporation.

On the other hand, according to the facts established by the court below, the defendant Depository filed an application for correction on July 18, 200 to "the fact that the cause of the deposit of this case was "the creditor of this case was not returned due to the provisional seizure of nine creditors of this case and the filing of the lawsuit for delivery of share certificates of this case" and the correction of this case was accepted. However, since the correction of the deposit is permitted only to the extent that it does not harm the identity of the deposit when the error of the deposit was discovered after the receipt of the application (see Supreme Court Decision 94Da42693 delivered on December 12, 195, etc.). Since the correction of the deposit of this case was "the creditor's relative impossibility of receiving the deposit" under the former part of Article 487 of the Civil Act, but it did not merely cause correction but harm the identity of the deposit, it cannot be viewed that the correction of the deposit of this case's contents cannot be seen as the correction of the correction of the deposit of this case's contents.

Nevertheless, the court below erred in finding that the deposit of this case was in full of the same nature as the “deposit for repayment in full and as the “deposit for payment in full due to impossibility of receiving.” However, it is reasonable in rejecting the Plaintiff’s assertion that the deposit of this case was lawful and that the Defendant Depository was liable for the return of share certificates. Therefore, this part of the ground of appeal is without merit.

2. On the assertion that there is a benefit of confirmation

In the case of a relative non-defensive deposit, there is a final and conclusive judgment in favor of one of the deposited parties to claim the withdrawal of the deposited goods, in order for other deposited parties to claim the withdrawal of the deposited goods (see Supreme Court Order 9Ma4239, Nov. 30, 199, etc.). In such a case, seeking the confirmation of the right to claim the withdrawal of deposited goods against a third party who is not the deposited party cannot be deemed as a benefit of confirmation.

The allegation in the grounds of appeal in this part is that the deposit in this case is both the "deposit for repayment without a relative uncertainty" and "deposit for repayment due to impossible receipt," and there is a benefit to confirm the part of the claim for the confirmation of the right to claim the withdrawal of deposited goods against the defendant 5 corporation (the supplementary intervenor of the defendant 2 and 3 corporation) who attached the share of the stock certificates of this case to the company of this case. However, as seen earlier, since the deposit in this case has the nature of the relative uncertainty as the repayment deposit, it cannot be deemed that there is a benefit to claim the confirmation of the right to claim the withdrawal of deposited goods against the above defendant, which is not specified as the beneficiary in the deposit, and therefore, this part of the grounds of

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party, including the part related to participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)