Even if a deposit for performance is based on the principal place of an obligation, and the obligor makes a deposit to the effect that, in offering performance, it is impossible for the obligee to receive the deposited article unless the obligee fulfills any condition, even though the obligee does not have any obligation to make any counter-performance or to fulfill other terms and conditions, the deposit for performance shall not be effective unless the obligee accepts it.

Even if a deposit for performance is made according to the principal place of the obligation, and even if the obligee does not have the obligation to make any counter-performance or other terms and conditions, if the obligor deposits for performance, and as such, he makes a deposit for performance to the effect that it is impossible for the obligee to receive the deposited article unless he fulfills any condition, the deposit for performance shall be null and void unless the obligee accepts it.

Article 487 of the Civil Act

Supreme Court Decision 65Da2431 delivered on February 15, 1966

Plaintiff (Attorney Park Byung-chul, Counsel for the plaintiff-appellant)

Defendant (Attorney Jeon-soo et al., Counsel for defendant-appellee)

Intervenor of a Party

Daejeon District Court Decision 65Na404 and 67Na8 (Intervention) Decided January 18, 1969

Of the original judgment, the part against the plaintiff is reversed.

The case portion is remanded to Daejeon District Court Panel Division.

The appeal by the party intervenor is dismissed.

The litigation costs incurred by the appeal by a party intervenor shall be borne by the party intervenor.

1. Determination on the grounds of appeal Nos. 1 and 2 by the Plaintiff’s agent

According to the reasoning of the judgment, the court below rejected the plaintiff's assertion that the registration of transfer of ownership in the name of the plaintiff on March 15, 1962 against the building of this case owned by the defendant was made for the purpose of preserving the right to indemnity by subrogation of the defendant against the non-party who is the plaintiff's mother, and the plaintiff purchased the above amount from the defendant with the special agreement for repurchase. Meanwhile, the original defendant shall pay the above amount to the above non-party by February 13, 1963, the interest rate of 5% per month on the plaintiff's subrogation, and the interest rate of 3% per month on the amount of the plaintiff's subrogation shall be restored to the defendant's registration of transfer of ownership in the name of the building of this case, if the defendant pays to the plaintiff with the above amount, the plaintiff can not seek the return of the building of this case in lieu of the performance of each of the above obligations, and there is no error of law by misunderstanding the legal principles as to the original contract's return of the substitute, and therefore, it shall be null and void within the above 2015th of the above agreement.

Judgment on the third ground for the same reason.

According to the reasoning of the judgment of the court below, the court below held on June 2, 1967 that the defendant had been liquidated the secured debt of this case against the plaintiff as the deposit for repayment of KRW 174,878 to the plaintiff legally in June 2, 1967, and that the plaintiff has no legal interest or right to seek an objection in order to exercise the security right against the building of this case.

However, according to the evidence No. 8 (Deposit in Payment) that adopted by the original judgment, the defendant requires the certificate of cancellation registration of ownership transfer registration in the name of the plaintiff as above on the real estate in return for the above deposit.

However, even if the repayment deposit is based on the principal place of the obligation, if the obligor made a deposit to the effect that it is impossible for the obligee to receive the deposit unless the obligee has fulfilled any condition in return or any other condition, even though the obligee does not have a duty to do so, the deposit for repayment shall be null and void unless the obligee accepts it. (See Supreme Court Decision 65Da2431 delivered on February 15, 1966) The Defendant’s principal deposit for repayment shall be subject to such condition as mentioned above. Thus, the lower court did not examine and determine whether there are any other special circumstances where the repayment deposit with the said condition may become effective, and the lower court erred in its reasoning to determine that the repayment deposit is a valid deposit for repayment, which affected the judgment.

2. Judgment on the grounds of appeal by the party intervenor

In light of the facts established by the original judgment, the ownership transfer registration in the name of the party intervenor on the building in this case from the name of the plaintiff on the original judgment, and the ownership transfer registration in the name of the party intervenor on the building in this case in collusion with the plaintiff on the purpose of obstructing the defendant's recovery of ownership on the building in this case. Therefore, there is no violation of evidence

3. Accordingly, the plaintiff's appeal is with merit, and the part against the plaintiff among the original judgment against the plaintiff shall not be reversed, and the appeal by the party intervenor is without merit. The costs of the appeal by the party intervenor are assessed against the intervenor and are so decided as per Disposition by the assent of all participating judges.

Justices of the Supreme Court (Presiding Judge) Kimchi-bi (Presiding Judge)