A lawsuit for confirmation has the benefit of confirmation when it becomes the most effective and appropriate means.

It is difficult to confirm whether there is a benefit in confirmation because the plaintiff failed to submit necessary evidence.

Other

2016 Doz. 51425 Ascertainment of a person entitled to deposit money

AA

Republic of Korea and 5

October 25, 2016

November 10, 2016

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On October 00, 000, the officer of the Seoul Southern District Court confirmed that the plaintiff has the right to claim for payment of KRW 000,000,000, which was deposited by the above court No. 0000,000, out of the total amount of KRW 000,000.

(hereinafter referred to as the "stock company" is omitted when named the defendants.

1. Facts of premise;

A. On October 0, 000, AA market reconstruction association (hereinafter referred to as the "AAA reconstruction association") completed the registration of establishment of a collateral (hereinafter referred to as the "mortgage of this case") with respect to Defendant 2, the debtor AA reconstruction association, the maximum debt amount of 00,000 square meters (hereinafter referred to as the "mortgage of this case"), and the secured debt of this case (hereinafter referred to as the "mortgage of this case").

B. As a creditor against Defendant 2, the Plaintiff, Defendant 1, Defendant 3, and Defendant 4 completed the provisional attachment or seizure of the instant collateral security and claims, etc. as follows.

C. On October 00, 000, Defendant 2 transferred KRW 000,000,000 among the instant bonds to Defendant 5, and notified the debtor AA reconstruction association of the transfer on October 0, 000, and the notification was issued on October 0, 00.

D. On October 00, 000, Defendant Republic of Korea notified Defendant 2 that “In order to collect the value-added tax of KRW 000,000,000,000,000 in total in arrears until the time, Defendant 2 attached the dividend payment claim (including other claims and future claims included) to be paid by the third obligor’s Republic of Korea (including the increased additional charges and expenses for disposition on default added later) from the third obligor’s Republic of Korea (00,000,000) in the auction case of the land of this case (0,000,000).”

E. The land of this case was sold in the procedure of voluntary auction (hereinafter referred to as the “auction of this case”) at the Seoul Southern District Court Decision 000 Ma-2000, 000, 000 (combined), 000 Ma-2000, 000 Ma-2000 (Du)

C. On October 00, 000, the judicial assistant officer of the above court prepared a distribution schedule containing the distribution of KRW 00,000,000 to Defendant 2 of the mortgagee. On the same day, AA reconstruction association, the debtor and owner, appeared on the date of distribution, stated an objection against the total amount of dividends of Defendant 2, and filed a lawsuit of demurrer against distribution on October 000.

F. On October 0, 000, the officer of the 00 court deposited the dividend and interest amount of KRW 000,000,000 against Defendant 2 as 00,000 (hereinafter “the deposit of this case”). The statutory provisions and the reasons for the deposit stated in the deposit document are as follows.

G. On October 0, 000, the 00 court accepted the dividend payment case under the deposit of this case as 000 other 0000 billion won (hereinafter “instant dividend case”). AA reconstruction association withdrawn the lawsuit of demurrer against the said objection around October 000.

[Reasons for Recognition]

Between the Plaintiff and Defendant 4: Confession pursuant to Article 150 of the Civil Procedure Act

Between the Plaintiff and the other Defendants: Gap evidence Nos. 1 through 3, 5 through 8, Eul evidence Nos. 2 (the same shall apply to the evidence No. 1), Eul evidence Nos. 1 and the purport of the whole pleadings

2. The plaintiff's assertion

In the dividend case of this case, only the Plaintiff, Defendant 1, Defendant 3, Defendant 4, and the Republic of Korea (the director of the tax office) who was subject to the allocation of the deposit money of this case was the provisional attachment, seizure, disposition on default of the right to collateral security of this case, or the claim

Defendant 5 merely acquired part of the instant claims from Defendant 2, but did not have been transferred the instant collateral security right, and thus, did not have the status of receiving dividends on the instant deposit money.

Of the instant deposit money, KRW 00,000,000 shall be preferentially distributed to the Defendant’s Republic of Korea. The remainder of KRW 000,000,000 shall be apportioned to the Plaintiff, Defendant 1, and Defendant 4 in proportion to each of the total amount of enforcement claims of the Plaintiff 1, Defendant 3, and Defendant 4 (=Plaintiff 00,000,0000 + + KRW 100,000,000 + + KRW 300,000,000 + KRW 400,000 + Defendant 40,000). As such, each of the amount of enforcement claims of the Plaintiff, Defendant 3, and Defendant 4 shall be apportioned in proportion to each of the amount of enforcement claims.

Ultimately, the amount to be distributed to the Plaintiff is KRW 000,000,000, and thus, the Plaintiff has the right to claim for payment of deposit equivalent to the above amount. Since the Defendants dispute this, they seek confirmation against the Defendants.

3. Determination ex officio as to the legitimacy of the instant lawsuit

(a) Relevant legal principles;

A lawsuit for confirmation needs to be immediately finalized by a confirmation judgment between the plaintiff and the defendant in order to remove any danger or unrefluence existing in the plaintiff's rights or legal status, and there is a benefit of confirmation when it becomes the most effective and appropriate means.

On the other hand, the debtor may also make a mixed deposit on the ground of repayment deposit and seizure based on the latter part of Article 487(2) of the Civil Act and Article 248(1)3 of the Civil Execution Act. Such mixed deposit is effective as a deposit for repayment to the creditor involved in the repayment deposit, and as a deposit for execution to the creditor involved in the execution deposit, etc. In this case, the execution court shall suspend its actual procedure until it is impossible to proceed with the distribution procedure, as long as the creditor is not finally determined by the original creditor who is to receive the deposit through the confirmation of the existence of the claim for payment of the deposit, for example, the execution creditor shall belong to the execution debtor. Thus, the execution creditor shall submit to the execution court the document attesting that the claim for payment of the deposit belongs to the execution debtor, for instance, the original copy of the confirmation judgment certifying that the debtor has the right to claim for payment of the deposit, a certificate of confirmation of the judgment, a copy of the same content, and a consent letter of approval of the transferee's seal impression attached to the execution court (see Supreme Court Decision 2015Da265656, etc.).

B. Determination

According to the premise facts, the deposit of this case is effective against the defendant 5 and defendant 2 on the ground of relative creditor uncertainty, and is so-called mixed deposit with the effect of execution deposit on the ground of seizure, etc. against the plaintiff, defendant 1, defendant 3, and defendant 4.

In order for enforcement creditors, including the plaintiff or defendant 1, to receive their own amount of claim from the deposit money of this case, as stated in the above paragraph (a) above, the distribution procedure can proceed only when the person who is entitled to receive the deposit through the confirmation of the validity of the acquisition of claims by the defendant 5, which is the reason for the repayment deposit, is confirmed. Thus, the defendant 2 and the defendant 5 should first submit the document attesting the existence and the amount of the claim for payment of deposit money belonging to the defendant 2, i.e., the original confirmation and the final confirmation certificate, etc. between the plaintiff 2 and the defendant 5, to the court of execution of the distribution case. If the distribution procedure of this case is followed again, the execution creditors including the plaintiff, etc. should receive the distribution according to the legal judgment of the court of execution of the distribution case concerning the priority among the execution creditors, the scope of each claim that can participate in the distribution, and if they are dissatisfied with the judgment of the above execution court, the court of execution of the distribution case of this case can bring a lawsuit of objection against the plaintiff, etc.

However, without going through the above procedures, the Plaintiff filed the instant lawsuit seeking confirmation with himself as the claimant for withdrawal of KRW 00,00,000 among the instant deposit money. The Plaintiff cannot be deemed to have formally reverted to the Plaintiff the claim for withdrawal of part of the instant deposit under the circumstances where the distribution procedure of the instant dividend case is suspended since the original creditor to receive the instant deposit became final and conclusive who is between Defendant 2 and Defendant 5, and thus, it cannot be deemed that the instant claim for withdrawal belongs to the Plaintiff. Even if the instant court declares a judgment accepting the Plaintiff’s claim, such judgment does not constitute a document evidencing the existence and scope of the claim for payment of deposit money, and thus, cannot be deemed to have been resolved.

Ultimately, the instant lawsuit cannot be deemed as a valid and appropriate means to eliminate the existing uncertainty or danger in the Plaintiff’s rights or legal relations, and thus, there is no benefit of protecting the rights or confirmation.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.