[1] In a case where a third party creditor receives an order of seizure for the right to claim the recovery of the deposit for release from provisional seizure, whether the seizure is concurrent (affirmative)

[2] Purport of the provision of Article 581(1) of the Civil Procedure Act concerning the execution deposit and whether it applies mutatis mutandis to duplicate seizure (affirmative)

[3] Whether a court of execution may commence the distribution procedure even before the main lawsuit of a provisional seizure creditor becomes final and conclusive in cases where other creditors take a compulsory execution procedure against the right to claim the recovery of the deposit for provisional seizure (affirmative)

[1] Where an amount of release from provisional seizure has been deposited in lieu of the object of provisional seizure execution, the effect of such provisional seizure is not itself but against the debtor's right to claim for recovery of the deposited money, so in case where other creditors of the debtor are ordered to seize the claim for recovery of the deposited money from provisional seizure, seizure of other creditors than the creditor of provisional seizure is the same as the object of execution.

[2] Article 581(1) of the Civil Procedure Act, which provides that where a third-party obligor may deposit his/her obligation as a right where a demand for distribution exists for an attached monetary claim, the third-party obligor may deposit his/her obligation as his/her right. The purpose of Article 581(1) of the same Act is to eliminate the risk that the third-party obligor may be held liable for double repayment by erroneous judgment in regard to the existence of the right to receive repayment or the distribution of the amount of obligation, etc., and to ensure the appropriateness of the execution procedure. The ideology of the appropriateness of the third-party obligor protection and execution procedure is also requested where the creditor competes by double seizure (including provisional seizure). Thus, Article 581(1) of the Civil Procedure Act, which

[3] Even if the debtor's right to claim for recovery of the deposit for provisional seizure is conditional claims on condition of suspension such as the final decision against the lawsuit on the merits of the provisional seizure creditor, the deposit for release for provisional seizure is substituted for the object of provisional seizure and the purpose of deposit is to preserve the compulsory execution of the preserved claim like the execution of provisional seizure. The creditor of provisional seizure has no right to preferential payment as to the deposit for release for provisional seizure as well as there is no right to preferential payment by the creditor of provisional seizure to claim for recovery of the deposit for release for provisional seizure, and it does not cause any particular loss to the creditor of provisional seizure, and if the creditor of provisional seizure makes a decision that other creditor's claim is false, or that the amount of the claim is excessive unfairly, if the creditor of provisional seizure is judged to withhold the distribution to other creditors on such ground, the commencement of the distribution procedure does not directly become unlawful on the ground that there is an objection to a distribution creditor

[1] Article 702 of the Civil Procedure Act / [2] Article 581 (1) of the Civil Procedure Act / [3] Articles 581 and 585 (2) of the Civil Procedure Act

[2] Supreme Court Decision 86Da5179 decided Jun. 14, 1996 (Gong1996Ha, 2176), Supreme Court Decision 86Da42 decided Jan. 31, 1989 (Gong1977, 10243) / [3] Supreme Court Decision 77Da659 decided Jul. 26, 197 (Gong1977, 10243)

Kim Tae-jin et al. (Attorneys Park Jong-ok et al., Counsel for the re-appellant)

Gwangju District Court Order 94Ra43 dated January 5, 1995

All reappeals are dismissed.

The re-appellant's re-appeal ground is examined.

1. On the first and second grounds for appeal

Where an amount of release from provisional seizure has been deposited in lieu of the object of provisional seizure, the effect of such provisional seizure is not itself the deposit money, but it extends to the creditor's right to claim the recovery of the deposit money from provisional seizure. Therefore, in case where other creditors have been ordered to seize the money from the provisional seizure creditor's right to claim the recovery of the deposited money from provisional seizure, seizure of other creditors who are different from the provisional seizure creditor's right to claim the recovery of the deposited money from provisional seizure will concurrently conflict with the object of execution. Meanwhile, Article 581 (1) of the Civil Procedure Act, which provides that in case where the third debtor's right to demand the distribution of the seized money competes with each other, the third debtor may deposit the amount of the obligation as his right, thereby misunderstanding the risk that the third debtor may take responsibility for double payment and ensuring the appropriateness of the execution procedure, and the above ideology of the protection and execution procedure for the third debtor is also requested by the creditor by double seizure (including provisional seizure). Thus, Article 581 (1) of the Civil Procedure Act, which provides that the amount of the obligation may be deposited as the right shall also be inferred seizure.

The order of the court below with the same opinion is just, and there is no error in the misapprehension of legal principles as the theory of lawsuit.

2. On the third ground for appeal

Article 585 subparagraph 2 of the Civil Procedure Act stipulates that "when a third-party debtor has deposited it pursuant to the provisions of Article 581" as the requirements for the commencement of distribution, and when a third-party debtor has reported the reasons for deposit, a court of execution in receipt of a report on the reasons for deposit can immediately commence the distribution procedure, since it is no longer possible for any other creditor to demand a distribution, etc. as it reaches the completion

In addition, even if the debtor's right to claim for recovery of the deposit for release from provisional seizure is conditional claims that serve as a condition of suspension in the lawsuit on the merits of the provisional seizure creditor, the deposit for release from provisional seizure is substituted for the object of provisional seizure, and the purpose of deposit is to preserve the compulsory execution of the preserved claim like the execution of provisional seizure, and the creditor of provisional seizure has no right to preferential payment as to the deposit for release from provisional seizure as well as there is no right to preferential payment by the creditor of provisional seizure to claim for recovery from the deposit for release from provisional seizure, and it does not cause any particular loss to the creditor of provisional seizure. If the creditor of provisional seizure makes another creditor's false claim or the amount of the claim is judged to be excessive unfairly, the distribution of the other creditor is deferred on the ground that there is a demurrer against the creditor of provisional seizure, and the commencement of the distribution procedure does not itself become unlawful.

The Re-Appellant's assertion that the debtor's right to claim for recovery of the provisional seizure deposit is conditional credit shall not commence until the lawsuit on the merits of the provisional seizure creditor becomes final and conclusive shall not be employed independently. The order of the court below that made the same conclusion with party members is just, and there is no error in the misapprehension of legal principles such as the theory of lawsuit. There is no ground

3. Therefore, all reappeals' reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)