[1] Whether the depositor can choose the reasons for the deposit at his/her own discretion (affirmative), and the method of determining whether the third debtor's deposit is a repayment deposit, an execution deposit, or a mixed deposit

[2] Where part of the monetary claim was seized but the full amount of the claim was deposited, the nature of the deposit

[3] Whether a third party obligor may deposit for execution on the ground of a provisional disposition prohibiting disposition (negative)

[4] Purport of Article 247 (1) 1 of the Civil Execution Act, and in the case of a mixed deposit, whether the part of the deposit for payment constitutes the deposit for payment has the effect of blocking the entry of dividends by a third party obligor's report (negative)

[5] The case holding that the creditor who received a seizure and collection order against the debtor's right to claim the payment of the deposit money after the third debtor's deposit was reported, and the creditor who received a seizure and collection order against the debtor's right to claim the payment of the deposit money, is not qualified to file a lawsuit of demurrer against distribution against the person who received a dividend from the part corresponding to the payment deposit

[1] The deposit is made under the responsibility and judgment of the depositor, and the depositor may choose the deposit for repayment, the execution deposit, or the mixed deposit according to which he is liable. Whether the third party obligor made the payment, whether the execution deposit was made, or whether the mixed deposit was made shall be determined by comprehensively and reasonably taking into account the designation of the depositee, the grounds for the deposit, the report on the reasons for the deposit, etc.

[2] Article 248(1) of the Civil Execution Act provides that "a third party debtor may deposit the full amount of monetary claims related to seizure in full" so that the entire amount of claims related to the seizure may be deposited without due consideration as to the creditor's request for deposit, claim for collection, competition, etc. Accordingly, in a case where only a part of monetary claims is seized despite the seizure, the total amount of monetary claims related to the seizure shall be considered as an execution deposit as a matter of course, but since the seizure does not have the effect, the part exceeding the amount of monetary claims shall be considered as an execution deposit, not an execution deposit.

[3] The execution deposit is based on the premise of the progress of the procedure, such as the distribution of dividends after deposit. Even if it is for the purpose of monetary claim, a provisional disposition prohibiting disposal cannot be made on the ground that it is not related to the distribution procedure, etc., and thus, a garnishee cannot make a deposit for execution on the ground that it is not related to the third debtor's pecuniary claim.

[4] Article 247(1)1 of the Civil Execution Act allows creditors, other than the execution creditor, to participate in the compulsory execution procedure against a claim by the method of demand for distribution and receive repayment of their claim equally with the execution creditor. On the other hand, the reason why the completion period for demand for distribution is limited to the time until the third debtor's deposit is reported on the reason of the deposit. This is because the third debtor may prevent confusion and delay in the distribution procedure to be completed until the time when the third debtor deposits the amount of debt and completes the report on the reason, and prevent confusion and delay in the distribution procedure until the time when the distribution procedure is commenced. Therefore, in the case of a so-called mixed deposit where the execution deposit and the repayment deposit are mixed, there is no room for blocking the entry into a distribution by the third debtor's report on the reason of the deposit.

[5] The case holding that the creditor, who received a seizure and collection order against the debtor's right to claim payment of the deposit money after the garnishee made a mixed deposit and reported the reason for deposit, shall not be deemed to have lawfully made a demand for distribution due to the effect of blocking the subscription to the portion corresponding to the execution deposit, but for the portion corresponding to the repayment deposit, on the ground that he lawful demand for distribution was made, there is no standing to file a lawsuit of demurrer against distribution against the person who received a dividend from the part corresponding to the execution deposit, and there is standing to file a lawsuit of demurrer against distribution against the person who received

[1] Article 487 of the Civil Act, Article 248(1) of the Civil Execution Act / [2] Article 487 of the Civil Act, Article 248(1) of the Civil Execution Act / [3] Article 487 of the Civil Act, Article 248(1) of the Civil Execution Act / [4] Article 487 of the Civil Act, Articles 247(1)1 and 248(1) of the Civil Execution Act / [5] Article 487 of the Civil Act, Articles 154(1), 247(1)1 and 248(1) of the Civil Execution Act

[1] Supreme Court Decision 2003Da12311 Decided May 26, 2005 (Gong2005Ha, 1010) / [4] Supreme Court Decision 98Da62688 Decided May 14, 199 (Gong199Sang, 1159) / [5] Supreme Court Decision 2003Da29456 Decided January 26, 2006 (Gong2006Sang, 293) Supreme Court Decision 2005Da28747 Decided February 9, 2006

Plaintiff 1 and two others (Attorney Tae-ro et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Democratic and one other, Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na28944 decided Oct. 26, 2006

The part of the lower judgment against Defendant 2 Co., Ltd. is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by the Plaintiffs against Defendant 1 Credit Guarantee Fund are dismissed. The costs of appeal between the Plaintiffs and Defendant 1 Credit Guarantee Fund are assessed against the Plaintiffs.

We examine the grounds of appeal.

1. The judgment of the court below

A. Comprehensively taking account of the selected evidence, the court below acknowledged the non-party 2's non-party 2's deposit order of 00,000 won on October 19, 204 to 10, 200, 41.35/463 shares and 411.35/463 shares on the non-party 2's 40, 50, 200, 10, 200, 300, 10, 200, 200, 30, 50, 100, 200, 40, 50, 100, 200, 10, 205, 30,000,000 won and 40,000,000,000 won and 50,000,000,000 won and 20,000,00,000 won.

B. Furthermore, the court below rejected the Plaintiffs’ assertion that the effect of blocking subscription under Article 247(1)1 of the Civil Execution Act exists only when the creditors conflict with each other, and the remaining creditors except the Defendants did not receive dividends in proportion to the distribution schedule, and brought a lawsuit of demurrer against the Defendants, as to this case, the Plaintiffs raised a lawsuit of demurrer against the Defendants. The court below rejected the Plaintiffs’ assertion that the effect of blocking subscription to the distribution under Article 247(1)1 of the Civil Execution Act was unlawful since it was filed by a person without standing to file a lawsuit of demurrer against the distribution on or after December 4, 2004, since it is apparent that the period of the instant distribution commenced by the deposit of Sungnam City, Sungnam-si, the garnishee, the garnishee, was issued the seizure and collection order after December 4, 2004, and as long as the demand for distribution is illegal, it did not constitute a legitimate demand for partial suspension of subscription to the distribution under Article 247(1)2 of the Civil Execution Act, which is limited to the total amount of the above claim to the above 7-mentioned claim amount.

2. Judgment of party members

A. The deposit is made under his responsibility and judgment by the depositor, and the depositor may choose the deposit for repayment, the execution deposit, or the mixed deposit according to which he is liable. Whether the garnishee made the payment, whether the execution deposit was made or not, or whether the mixed deposit was made shall be determined by comprehensively and reasonably taking into account the designation of the depositee, the grounds for the deposit, the report on the reasons for the deposit, etc. (see Supreme Court Decision 2003Da12311, May 26, 2005).

Meanwhile, Article 248(1) of the Civil Execution Act provides that “a third party obligor may deposit the full amount of monetary claims related to seizure in full” so that the entire amount of claims related to the seizure may be deposited without any need to take into account the obligee’s deposit claim, claim for collection, competition, etc. Accordingly, where only a part of monetary claims is seized despite the seizure, the total amount of monetary claims related to the seizure shall be considered as an execution deposit as a matter of course, but the amount of monetary claims that affect the seizure of the deposited money shall be considered as an execution deposit in its nature. However, since the seizure does not affect the effect of the seizure

In addition, the execution deposit is premised on the progress of the procedure, such as the distribution of dividends after deposit. Even if it is for the purpose of monetary claim, the provisional disposition is not related to the procedure of the distribution of dividends, etc., and thus, the third debtor cannot make the execution deposit on this ground. However, the repayment deposit can be made on the ground of the creditor's uncertainty.

Examining the record in light of the above legal principles, the deposit document of this case states that the reason for the deposit of this case is the reason for the seizure and collection order of Defendant 1 Credit Guarantee Fund and the provisional disposition order of Defendant 2, and thus, it cannot be paid to the non-party, who is the creditor, due to this reason. The relevant Acts and subordinate statutes stipulate that "Article 40 (2) 4 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor," which constitutes the reason for the execution deposit, is stated only by the non-party. Thus, it is reasonable to view that the part of the deposit of this case, which is the execution creditor, is the execution deposit, and its seizure is not effective.

B. Meanwhile, Article 247(1) of the Civil Execution Act provides that "a creditor who has the right to preferential reimbursement and an executory exemplification under the Civil Act, the Commercial Act or other Acts may demand a distribution to the court by the time falling under any of the following subparagraphs." Article 247(1)1 provides that "when a third-party debtor has reported a deposit under Article 248(4)." The creditor other than the execution creditor permits the creditor to participate in the compulsory execution procedure for a claim by the method of demand for distribution and receive the repayment of his/her claim equally with the execution creditor. However, while limiting the completion period for such demand for distribution to the time until the report of the third-party debtor's deposit is filed, the reason why the third-party debtor's deposit of the debt amount can prevent confusion and delay in the distribution procedure until the time when the report is completed, the mixed deposit under Article 247(1)3 of the Civil Execution Act is not likely to occur (see Supreme Court Decision 98Da62688, May 14, 1999).

In addition, in the case of so-called mixed deposits made by mixing the deposit and the deposit for repayment, the dividends have been made for any reason, and if there is any dispute over the amount to be paid or repaid under the distribution schedule with the creditors, it shall be resolved at once by the single procedure, which is the lawsuit of demurrer against distribution. Therefore, a person who asserts that the deposit was not paid or repaid despite the existence of the right to be paid or repaid, may file a lawsuit of demurrer against distribution against the other creditors indicated as being paid or repaid in the distribution schedule (see Supreme Court Decision 2005Da28747, Feb. 9, 2006, etc.).

Examining the record in light of the above legal principles, the Plaintiffs did not demand a distribution of the instant deposit prior to the deposit of this case and the report on its reason. However, the Plaintiffs received a seizure and collection order against the Nonparty’s right to claim a payment of deposit money thereafter. As such, regarding the part corresponding to the execution deposit of this case among the instant deposit money, it cannot be deemed that the lawful demand for distribution was made due to the effect of blocking the entry into a distribution. However, regarding the part corresponding to the repayment deposit of this case among the instant deposit money, there is no possibility that the effect of blocking the entry into a distribution due to the report on the reason of deposit of this case at Sungnam-si

C. Therefore, there is no standing to file a lawsuit of demurrer against distribution against Defendant 1, who received dividends from the part corresponding to the execution deposit among the instant deposit in the position of execution creditor, and in the same purport, the court below's decision dismissing the instant lawsuit against Defendant 1 Credit Guarantee Fund is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the invalidation of the seizure and collection order of claims and the effect of blocking the entry into a distribution, but there is no standing to file a lawsuit of demurrer against distribution against Defendant 2, who

Nevertheless, the court below rejected this part of the lawsuit on the ground that the plaintiff 3 did not have standing to sue in relation to the defendant 2 corporation. The judgment of the court below in this part is erroneous in the misunderstanding of legal principles as to the nature of the deposit and the effect of blocking the entry into a distribution, where the third debtor deposited the entire monetary claim related to the seizure due to the seizure of part of the claim, which affected the conclusion of the judgment. The ground of appeal pointing this out by the plaintiff

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff 3's defendant 2 corporation is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiffs' appeal against the defendant 1 Korea Credit Guarantee Fund shall be dismissed in entirety. The costs of this part are assessed against the losing party. It is so decided as per Disposition with the assent of all participating Justices.

Justices Kim Hwang-sik (Presiding Justice)