The legal relationship which serves as the basis for determining the principal of the claim for payment of deposit money in case where a debtor seeks confirmation of the existence of the claim for payment of deposit money against another person under deposit against him/her by depositing the relative uncertainty (=the legal relationship based on which this claim is established)

In cases where a debtor is unable to identify the creditor without any negligence, the obligation shall be exempted if the debtor deposits the object of performance (the latter part of Article 487 of the Civil Act), and the creditor shall be entitled to claim the payment of the deposit in the depository. In such cases, the right to claim the payment of the deposit held by the creditor who is the deposited party is a right in substitution of the original claim against the debtor. As such, the subject to ownership and the scope of rights are determined according to the legal relationship in which the original claim has been established. Therefore, in cases where the debtor deposits the deposit for the payment of the relative uncertainty because it is impossible to ascertain who is the true creditor, and one of the deposited parties seeks confirmation of the existence of the right to claim the payment of the deposit against the other deposited parties, the determination should be made based on who is the genuine creditor between the deposited parties and the debtor, can exercise the original claim in the legal relationship between the deposited parties.

Article 487 of the Civil Act

A.S. Private Equity Fund (LLC, Attorneys Lee Ho-ho et al., Counsel for the defendant-appellant)

아이스텀앤트러스트 주식회사 외 1인

Kmb Asset Management Co., Ltd and one other (Law Firm K&C et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Na2030204 decided November 2, 2016

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff and the Intervenor’s Intervenor’s Intervenor’s Private Equity Fund.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In a case where a debtor is unable to identify the creditor without any negligence, the obligation shall be exempted if the debtor deposits the object of performance (the latter part of Article 487 of the Civil Act), and the creditor shall be entitled to claim the return of deposit against the depository. In such a case, the right to claim the return of deposit held by the creditor who is the principal creditor is a right in substitution of the principal claim against the debtor. As such, the principal creditor and the scope of rights are determined according to the legal relationship with which the original claim has been established. Therefore, in a case where the debtor seeks to confirm the existence of the right to claim the return of deposit against the other principal creditor by depositing the deposited parties because it is impossible to identify who is the principal creditor, the determination shall be based on the identity of the principal creditor who is entitled to claim the return of deposit between the deposited parties and the debtor.

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

A. The Plaintiffs entered into an agreement with the Defendants, the Social Media Organization (hereinafter “Social Media”), and the Soviet Entertainment (hereinafter “Smi Investment”) pursuant to the instant MOU with the purport that they sell the instant shares to the Defendants, and the purchaser shall deposit KRW 6.35 billion with the security deposit.

B. Accordingly, the Plaintiffs and the buyer concluded the instant EP agreement with the law firm (LLC) (hereinafter “Pacific”), and the content as follows.

(1) If a cause for payment or return stipulated in the instant Escen agreement occurs while keeping the instant deposit from the buyer’s side, the Pacific shall pay or return the instant deposit to the right holder, and if there is room for dispute or dispute arises in connection with the performance of the terms and conditions of payment or return (Articles 4 and 6).

② The Pacific shall pay the deposit money of this case to the Plaintiffs when this contract is concluded under the MOU of this case and when the purchaser makes a written request for the payment of the purchase price of shares and the acquisition of major shareholders approval and the acquisition of management rights, etc.

③ In the event of nonperformance of the Plaintiffs’ obligation or failure of the buyer’s fault, or failure to conclude this contract without fault, the buyer’s side is entitled to refund the instant deposit.

④ In the event that the purchaser does not conclude this contract until the time limit set for the reasons attributable to the purchaser, or where it becomes clear that the approval of major shareholders cannot be obtained or that the approval of major shareholders cannot be obtained due to reasons not attributable to the plaintiffs, etc., the Pacific shall cancel the letter of understanding of this case, and accordingly, if the deposit of this case belongs to the plaintiffs as a penalty for breach of contract, the Pacific shall pay the deposit of this case to the plaintiffs (Article 4(3)).

⑤ The party who intends to transfer rights or obligations under the instant Escro Arrangement shall obtain prior written consent from the other parties (Article 11). In order to modify the content of the instant Escro Arrangement, there must be written consent from the parties to the contract (Article 12(1)). The Pacific bears the duty and responsibility only under the provisions of the instant Escro Agreement, and in principle, there is no need to refer to other documents concerning the instant understanding and this Agreement (Article 9(1)), and there is no obligation to separately confirm substantive facts (Articles 9(2) and 12(5)).

C. Following the conclusion of the instant share transfer contract, which is the main contract of the instant MOU, was concluded. According to the above, the Plaintiffs sold the instant shares to the private equity fund 2013, which is established by the buyer’s side (hereinafter “NI”), and paid the purchase price of shares, including the down payment, to the Plaintiffs. In lieu of paying the down payment directly, the buyer continued to deposit the instant deposit in lieu of paying the down payment, but the buyer transferred the claim for the refund of the deposit to the Pacific under the instant ESC agreement to ENI, and the Plaintiffs consented to the said transfer (Article 2(2)), and the instant MOU agreed to lose its validity as a matter of principle upon the conclusion of this contract (Article 1(2)).

D. However, neither the plaintiffs nor the purchaser notified the Pacific of the assignment of the above assignment, nor obtained the approval from the Pacific, nor take any follow-up measures such as changing the instant Escke agreement by reflecting the said contract deposit substitution and the assignment of claims.

E. The Financial Services Commission, the purchaser of the instant Escam agreement, intended to obtain the approval of the change of a major shareholder within the agreed period (Article 3(2)), but failed to obtain the approval within the agreed period. The Plaintiffs cancelled the instant stock acquisition agreement on the ground of the non-performance of obligation as above, and demanded the Pacific to pay the instant deposit to the Pacific. However, the Pacific refused the request for payment on the ground that there is room for dispute, and made a deposit for repayment on the part of the Plaintiffs and the purchaser, who are the parties to the instant Escam agreement, as the parties to the instant Escam agreement.

3. 위와 같은 사실관계를 기초로 하여, 원고 겸 탈퇴 원고 아이스텀앤트러스트 주식회사의 승계참가인인 아이스텀레드사모투자전문회사(이하 ‘원고 겸 원고승계참가인’이라고 한다)는 이 사건 청구원인으로 다음과 같이 주장하였다. 즉, 이 사건 예치금은 이 사건 양해각서에서 정한 보증금으로서 이 사건 에스크로약정에 따라 태평양에 예치되었다가 본계약인 이 사건 주식양수도계약이 체결됨에 따라 그 계약금으로 대체되었는데, 원고들은 이 사건 주식양도계약의 매수인인 이니티움이 약정 기한 내에 금융위원회로부터 대주주변경승인을 받지 못하였음을 이유로 이 사건 주식양수도계약을 해제하였으므로, 이 사건 주식양수도계약에서 정한 바에 따라 위 계약금을 위약벌로 몰취할 권리가 있고, 따라서 그 계약금으로 예치되어 있다가 공탁된 이 사건 공탁금의 출급청구권은 원고들에게 귀속되었음에도 피고들이 이를 다투므로 이 사건 공탁금출급청구권이 원고들에게 있다는 확인을 구한다는 것이다. 결국 원고 겸 원고승계참가인의 주장은, 이 사건 주식양수도계약의 계약금을 원고들이 위약금으로 몰취할 권리를 취득하였으니 태평양에 대하여 이 사건 예치금의 지급을 청구할 수 있는 권리가 있고, 따라서 이 사건 공탁금에 대한 출급청구권도 원고들에게 있다는 것이다.

The court below rejected the plaintiff and the succeeding intervenor's claim on the ground that the above plaintiff and the succeeding intervenor's assertion were based on ① the contract for the penalty of breach of contract under the stock acquisition agreement of this case can be claimed only on the grounds of the buyer's fault despite the terms and conditions of the contract. ② There is insufficient evidence to view that the Defendants failed to implement the major shareholder approval procedure or to implement the plan for establishing funds and securing funds necessary for the implementation of the procedure.

4. We examine the above facts in light of the legal principles and records as seen earlier.

The obligation to pay the instant deposit to the Plaintiffs or to return the instant deposit to the purchaser, including the Defendants, was to be borne in accordance with the terms of the instant Escro agreement. As such, either the Plaintiffs and the purchaser’s right holder who is entitled to exercise the right to claim the payment of the instant deposit should be determined on the basis of whom the right holder is entitled to exercise the right to claim the payment of the deposit against the Pacific. However, when entering into the instant share acquisition agreement between the Plaintiffs and the purchaser, the Plaintiff and the purchaser of the instant share purchase agreement, which is the principal contract of the instant MOU, replaced the instant deposit with the down payment to the Plaintiffs, and the buyer transferred the right to claim the refund of the deposit against the Pacific, to the Plaintiffs, and the purchaser agreed on the transfer of the right to claim the payment of the deposit to the Pacific, unless such fact was notified to the Pacific, or there was any additional procedure such as the change in the said Escro.

Therefore, in order for the Plaintiff and the Intervenor to claim the payment of the instant deposit, the Plaintiff and the Intervenor should assert and prove that they had the right to claim the payment of the instant deposit against the Pacific, the original debtor. Of the deposited parties, the existence of the right to claim the payment of the instant deposit should be determined on the basis of the instant Sc agreement, which served as the basis of the establishment of the relationship of claims and obligations between the Defendant, the Pacific and the obligee, and the buyer.

Nevertheless, the Plaintiff and the succeeding intervenor asserted that they acquired the right to confiscate the down payment of the contract as a penalty because the procedure for approving the change of major shareholders under the instant stock acquisition agreement was not implemented. However, in light of the legal principles as seen earlier, the Plaintiff and the succeeding intervenor did not clearly assert the grounds that the right to claim the payment of the deposit in this case against the Pacific, the debtor of the instant Escro agreement, was the basis for the occurrence of the right to claim the payment of the deposit in this case. However, in light of the aforementioned legal principles, the circumstance that the instant stock acquisition agreement was concluded and the instant claim for the refund of the deposit in this case was transferred to the Esc

Meanwhile, in the instant MOU, where the approval of major shareholders is not granted or it is apparent that the approval of major shareholders cannot be granted due to reasons not attributable to the plaintiffs, the Plaintiffs’ cancellation of the instant MOU and accordingly, the instant deposit belongs to the plaintiffs as a penalty for penalty for penalty. As seen earlier, the instant ESU provides that the Pacific shall pay the instant deposit to the plaintiffs in connection with the implementation of the MOU. The Plaintiff and the succeeding intervenors’s assertion that the Plaintiffs have the right to claim payment of the instant deposit, and thus, the Plaintiffs did not cancel the instant MOU, even if it appears to the purport that the Plaintiffs have the right to claim payment of the instant deposit against the Pacific. Rather, the instant MOU has lost its validity due to the conclusion of the instant stock acquisition agreement, which is the instant MOU, which is the instant contract, and thus, the Defendants did not obtain the approval of the modification of the obligation to obtain the approval of major shareholders (Article 1(2) / [Article 4(3) of this case].

Therefore, the lower court’s rejection of the Plaintiff and the Intervenor’s assertion is justifiable, but its conclusion is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the relevant legal doctrine or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The Plaintiff and the Intervenor’s other grounds of appeal are premised on the determination of legal relationship as to the instant deposit in accordance with the legal relationship under the instant agreement, and thus, the need for further determination is not reasonable.

5. Therefore, all appeals by the plaintiff and the succeeding intervenor are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)