Where the deposited person collects the deposited goods by seizure and all methods under the name of his/her liability under a separate claim against the deposited person, and the effect of the extinguishment of his/her claim

Where the deposited article is seized by the right to claim the recovery of the deposited article by the deposited person on the basis of the name of separate obligation held by the deposited person against the deposited person and the deposited article is collected by the execution thereof, the validity of the extinguishment of the claim due to the deposited

Article 489 of the Civil Act

Supreme Court Decision 67Da2120 Decided November 28, 1967

Plaintiff’s Attorney Cho Jae-chul, Counsel for the plaintiff-appellant

Defendant-Appellant No. 1

Daegu High Court Decision 78Na865 delivered on December 7, 1979

The judgment of the court below is reversed and the case is remanded to Daegu High Court.

The grounds of appeal are examined.

Although the effect of the extinction of the claim specified in the facts of the cause of the deposit is generated by the due deposit for payment (this Court Order 72Ma401 delivered on May 15, 1972). On the other hand, in case the depositor collects the deposited goods by exercising the right to recover the deposited goods, the validity of the extinguishment of the claim is deemed not to have been deposited and retroactively null and void (see Supreme Court Decision 67Da2120 delivered on November 28, 1967). In addition, the recovery of the deposited goods, which retroactively extinguishs the effect of the extinguishment of the claim, is made by the depositor as well as by the third party, and the deposited goods are collected by the execution after being seized the right to recover the deposited goods in the name of the separate bond held by the depositor against the depositor as well as by the third party.

However, according to the facts duly admitted by the court below, while the plaintiff was liable for the guaranteed obligation of 10 million won at the time of original purchase which was secured by provisional registration of this case against the defendant and the guaranteed obligation of 10 million won at the time of original purchase separately from this, the plaintiff deposited 14,583,340 won of the total principal and interest up to the time of the above 10 million won on January 21, 1978. The defendant refused to receive the above deposit and collected the above deposit money from the defendant under the name of the above 10,750,000 won in the name of the defendant's right to claim the collection of the above deposit against the plaintiff, and thus, in light of the above legal principles, the above obligation of 10,000 won was recovered by the exercise of the right to claim the deposit of this case, and thus, the court below erred in the misapprehension of legal principles as to the provisional registration of 10,000 won and thus, it did not have any effect on the provisional registration of this case.

Therefore, the appeal of this case is with merit, and the judgment of the court below is reversed and the case is remanded to the Daegu High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Han-jin (Presiding Justice)