[1] In a case where a secured right holder who received a peremptory notice to exercise his/her right pursuant to Article 125(3) of the Civil Procedure Act exercised his/her right by means of a lawsuit, such as filing a lawsuit, but the scope of claim is limited to part of the amount of a security deposit, whether the court shall revoke part of the security

[2] Scope of the security effect of the deposit provided for the suspension of compulsory execution, and whether the exercise of the right to claim compensation that does not fall under the scope of the above claim for compensation among the contents of the claim for damages claimed by the holder of the right to claim for the suspension of compulsory execution in a lawsuit filed for the exercise of the right is effective (negative) / Whether the scope of damages covered by the deposit falls under the scope of damages subject to special circumstances (affirmative with restriction), and whether the exercise of the right to claim the security does not extend to the effect of the exercise of the right to claim the security solely on the ground that the damages alleged by the holder of the right to claim are not ordinary damages (negative in principle)

[1] Where a person providing security applies for the cancellation of a security without the consent of a person holding a right to the security, and a person holding a right to the security fails to exercise his/her right even after receiving a peremptory notice to exercise his/her right (Article 125(3) of the Civil Procedure Act). Even in cases where a person holding a right who has received a peremptory notice exercises his/her right by means of a lawsuit, such as filing a lawsuit, filing an application for payment order, etc., if the scope of claiming a right is limited to a part of the amount of a deposit, the excess portion

[2] The deposit provided by the court’s order to suspend compulsory execution has the effect of guaranteeing the compensation for damages incurred due to the suspension of compulsory execution procedures. As such, the scope of damages claimed by the secured party in a lawsuit filed by the secured party for the exercise of rights, which does not fall under the above scope of the claim for compensation, has no effect as an exercise of the right to block the revocation of the security. However, since the scope of damages subject to the security would be governed by Article 393 of the Civil Act, damages may be included if the secured party knew or could have known of the circumstances, as well as ordinary damages, and damages arising from special circumstances may be included if the secured party knew or could have known of such circumstances. Therefore, even if the secured party’s assertion itself, it is not readily concluded that the effect of exercising the right to the secured party’s right does not extend to the sole reason that the damages alleged by the secured party is not ordinary damages in the lawsuit. Moreover, even if it is difficult to determine the specific amount of damages due to the content of the right claimed by the secured party including damages or litigation costs, a court shall regard the secured portion exceeding the submitted data.

[1] Article 125(3) of the Civil Procedure Act / [2] Article 125(3) of the Civil Procedure Act, Article 393 of the Civil Act

[1] [2] Supreme Court Order 2004Ma177 dated July 5, 2004 (Gong2004Ha, 1504) / [1] Supreme Court Order 2013Ma454 dated May 16, 2013 / [2] Supreme Court Order 79Ma74 dated November 23, 1979 (Gong1980Sang, 12365)

New Co., Ltd.

Respondent

Busan High Court Order 2016Kadam38 dated August 8, 2016

The order of the court below is reversed, and the case is remanded to Busan High Court.

The grounds of reappeal are examined.

1. Where a person who provided security applies for the cancellation of security without the consent of a right holder, and a person who has the right to security applies for the cancellation of security, it shall be deemed that he/she consented to the cancellation of security unless the person who has the right to security exercises his/her right upon the receipt of a peremptory notice (Article 125(3) of the Civil Procedure Act). Even in cases where a right holder who has received the peremptory notice exercises his/her right by means of a lawsuit, such as the filing of a lawsuit, the application for payment order, etc., if the scope of claiming the right is limited to a part of the deposited amount, the excess portion shall be deemed to have consented to the cancellation of security. As such, the court must revoke part of the security (see Supreme Court Order 2004Ma177, Jul. 5, 2004; Supreme Court Order

However, the deposit provided by the court order for the suspension of compulsory execution is effective only to compensate for losses arising from the suspension of compulsory execution procedure. Thus, it shall be deemed that the scope of the right to claim compensation does not fall under the above scope of the right to claim compensation in a lawsuit filed by the right to claim compensation for the exercise of the right (see Supreme Court Order 79Ma74, Nov. 23, 1979). However, since the scope of damage subject to security is based on Article 393 of the Civil Act, it shall be subject to Article 393 of the Civil Act (see Supreme Court Order 2004Ma177, Jul. 5, 2004), as well as ordinary damages, and damages due to special circumstances may be included if the person liable for compensation knew or could have known of the situation. Accordingly, even if the right to claim the right to claim is asserted, it shall not be readily concluded that the damage claimed by the right to claim does not have an effect on the part of the right to claim compensation within the scope of the right to claim compensation.

2. The record reveals the following facts.

1) In the case of a claim for the purchase price of Busan District Court 2012Gahap8089, which was filed by the respondent against the re-appellant, the above court paid to the respondent the amount of KRW 1,725,00,000, and KRW 250,000 from September 1, 201, KRW 250,000 from December 1, 201, KRW 150,000 from March 1, 201, KRW 150,000 from March 1, 20, KRW 75,000,000 from January 17, 201, and KRW 20,000 from January 17, 2013 to October 30, 205, respectively, and KRW 30,000 from May 1, 205 to October 31, 205, respectively.

2) On February 4, 2013, the Re-Appellant applied for a suspension of compulsory execution against the judgment of the court of first instance ( Busan District Court 2013Kao278), and on the condition that the Re-Appellant deposited KRW 200,000,000 as security for the respondent, the Re-Appellant rendered a decision to suspend compulsory execution against the judgment of first instance until the appellate court rendered a judgment. Accordingly, the Re-Appellant deposited KRW 20,000,000 on February 5, 2013.

3) In the appellate trial of the first instance judgment of this case [the appellate court of Busan High Court 2013Na928, 2015Na205, 2013Na2894 (Counterclaim), and 2013Na2894)], the court changed the first instance judgment of this case on February 17, 2016, and the appellate court of this case paid 839 million won to the respondent with interest of 250,000,000 won from September 1, 2011 to December 1, 2011; 150,000,000,000 won to the respondent with interest of 250,000 won from March 1, 201 to May 13, 201 (the appellate court 75,000,000 won) and rendered a provisional execution order of this case with interest of 10% from the date of each of the following judgment to the date of 2013% (the provisional execution order of this case).

4) On February 23, 2016, the Re-Appellant applied for the suspension of compulsory execution against the instant appellate judgment ( Busan High Court Decision 2016Kahap8), and on the condition that the Re-Appellant deposited KRW 450,000,000 as security for the respondent, the court rendered a decision to suspend compulsory execution against the instant appellate judgment until the time the judgment of final appeal is rendered (hereinafter “decision to suspend compulsory execution”). Accordingly, the Re-Appellant deposited KRW 450,00,000 on February 25, 2016 (Seoul High Court Decision 201316, hereinafter “instant deposit”).

5) On June 23, 2016, the appeal by the Re-Appellant was dismissed from the final appeal (Supreme Court Decision 2016Da16566, 2016Da16573, 2016Da16580, 2016) against the instant appellate judgment.

6) On July 8, 2016, the re-appellant filed an application for the peremptory notice of the exercise of the right and the cancellation of security. On August 3, 2016, the respondent who received the peremptory notice of the exercise of right filed a lawsuit for damages claim against the re-appellant (hereinafter “instant lawsuit”) with Busan District Court Decision 2016Da331407, Busan District Court (hereinafter “the instant lawsuit for damages”) and reported that the re-appellant exercised the right to the instant deposit when submitting a copy of the instant lawsuit for damages claim and a certificate of receipt to the lower court. Accordingly, the lower court dismissed the entire application on August 8, 2016 on the ground that the respondent filed a report on the exercise of the right by the respondent.

7) The purport of the claim stated in the complaint filed by the respondent in the lawsuit of this case is to pay 6% interest per annum to the Respondent from the day following the delivery of a copy of the complaint and its 154,129,440 won to the day the judgment is rendered, and 15% interest per annum from the next day to the day of complete payment. The lawsuit costs are to seek a judgment at the re-appellant's expense. Further, as the cause of the claim, not only damages arising from the suspension of compulsory execution against the appellate judgment of this case but also damages arising from the suspension of compulsory execution against the judgment of the first instance. Specific claim is to be claimed: ① The appellate judgment of this case issued with the installment payment of this case and after the expiration of the payment period, the Respondent's interest payment of 114,00,000 won and interest of 104,850,000 won and interest of 10,000 won and interest of this case were to be paid for each of the above Respondent's total damages amount of 50,40,4000,40.

3. Examining the above facts in light of the legal principles as seen earlier, the re-appellant sought revocation of the instant deposit upon the application of the re-appellant, and the deposit of this case only guarantees liability for damages arising from the suspension of compulsory execution of this case which is the subject of the judgment of the appellate court during the suspension of two compulsory execution upon the application of the re-appellant. Therefore, the lower court should have confirmed that the respondent, the secured right holder, claims compensation for damages arising from the suspension of compulsory execution of this case in the damages claim lawsuit of this case. In this case, it is not necessary to consider whether the respondent is actually recognized in the lawsuit of this case in the future. Although it is not determined without permission that the claim of this case is the principal right holder belonging to special damage, and if the amount of the right to claim is limited to part of the deposit of this case, the lower court should have determined revocation of part of the security by deeming that the respondent has consented to the portion exceeding the above amount.

However, the claim for damages of this case specifically state the cause, contents, and duration of the damage items claimed by the respondent, and in light of this, it seems relatively easy to distinguish between the part caused by the suspension of compulsory execution of this case among the respondent's claims and the part not so. It seems that the respondent can set a reasonable scope and recognize damages or litigation costs claimed by the respondent.

Nevertheless, the lower court dismissed the re-appellant’s application for revocation of security solely on the ground that the respondent filed a lawsuit claiming damages of this case without closely examining whether the part reported by the respondent to exercise his right through the lawsuit claiming damages of this case falls under the scope of security arising from the deposit of this case. The lower court erred by misapprehending the legal doctrine on revocation of security, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The grounds for reappeal pointing this out are with merit.

4. Therefore, without further proceeding to decide on the remaining grounds of reappeal, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)