There is a legal interest in seeking confirmation of the claim for non-deposit in deposit against the State who is execution creditor.

The deposit of this case appears to be a mixed deposit with the nature of the execution deposit as well as the repayment deposit. The judgment in favor of the plaintiff on the confirmation of the right to claim the withdrawal of the deposited goods against the person against whom the deposit of this case was made is insufficient to claim the withdrawal of the deposited goods of this case. As such, the plaintiff has a legal interest in seeking confirmation of the right to claim the withdrawal of the deposited goods against the defendant who asserted the plaintiff

2011Da89231 Confirmation of Claim for Payment of Deposit

AA Information System, Inc.

Korea

Seoul Southern District Court Decision 2011Na6866 Decided October 6, 2011

March 29, 2012

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. 원심은 직권으로 그 판시와 같은 사실에 비추어 BB개발상사가 한 이 사건 공탁을 변제공탁이라고 인정한 다음 원고는 다른 피공탁자들인 제1심 공동피고 CCC DDD네트웍스를 상대로 받은 공탁물출급청구권확인 승소확정판결을 가지고 공탁금 출급청구를 할 수 있으므로 피공탁자가 아닌 제3자에 해당하는 피고를 상대로 공탁금 출급청구권의 확인을 구할 필요는 없다고 보아 원고의 피고에 대한 이 사건 소는 확인 의 이익이 없어 부적법하다고 판단하였다.

2. However, we cannot agree with the judgment of the court below.

A. The deposit is made under his/her responsibility and judgment, and the depositor may choose the deposit for repayment, the execution deposit, or the mixed deposit by driving away from his/her own will. Whether or not the depositor has made any of his/her own kinds of deposits must be determined by comprehensively and reasonably taking into account the fact that the reason for the deposit of the statutory provisions, which served as the basis for the deposit of the principal (see, e.g., Supreme Court Decision 2006Da74693, May 15, 2008). Moreover, the deposit of the mixed deposit is made for not only by the depositee but also by the execution creditor, including the provisional seizure creditor, to be recognized as a harmful effect from his/her obligation. Therefore, it is insufficient that the depositee has to submit documents proving that the right to claim for the deposit has been established only in relation to the other person, and also by submitting documents proving that the execution creditor has a right to claim for the withdrawal of the deposit.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) On June 21, 2010, CCC Co., Ltd. (hereinafter “CCC”) filed a provisional attachment suit of USD 35,957 with the Plaintiff on June 21, 2010, and the provisional attachment claim of USD 10,957 (hereinafter “CCC”) were transferred to BB Development Co., Ltd. (hereinafter “B Development Co., Ltd.”) and notified the above assignment to BB Development Co., Ltd. by content-proof mail, and the notification was reached to BB Development Co., Ltd. on June 22, 2010. (2) The CB Development Co., Ltd. received the provisional attachment claim of USD 10,000 on June 27, 201 and the provisional attachment claim of USD 30,000 on June 1, 201.

C. Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that the deposit of this case is a mixed deposit with the nature of the execution deposit as well as the payment deposit in comprehensive consideration of the facts stated in the statutes and the reasons leading up to the deposit of this case. Thus, since the judgment of winning the claim for the withdrawal of the deposit of this case is insufficient to claim the withdrawal of the deposit of this case, the plaintiff has a legal interest in seeking confirmation of the claim for the withdrawal of the deposit of this case against the defendant who is asserting the plaintiff's rights as the execution creditor. Nevertheless, the court below denied the benefit of confirming the claim for the withdrawal of the deposit of this case merely by the final judgment of winning the claim for the withdrawal of the deposit of this case. Accordingly, the judgment of the court below erred by misapprehending the legal principles as to the benefit of confirmation in the lawsuit for mixed deposit and confirmation, and the ground for appeal pointing this out is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.