Whether it is possible to recover deposited goods where a provisional registration security right or security right to transfer ceases to exist due to repayment deposit of obligation.

The provisions of Article 489 of the Civil Act, except in a case where the right of pledge or mortgage is extinguished due to deposit, provides that the creditor may approve the deposit or notify the depository of the receipt of the deposited goods, until the judgment of validity of deposit becomes final and conclusive, and in this case, the person performing the deposited goods may recover the deposited goods, and in this case, it does not include the purport that the person performing the obligation cannot recover the deposited goods even in a case where the right of provisional registration or the right of security for transfer ceases to exist due to the repayment deposit secured by provisional registration or principal registration. Thus, the creditor of the person performing the obligation may

Article 489 of the Civil Act

Attorney Lee Ho-ho, Counsel for plaintiff-appellant

Defendant-Appellee et al., Counsel for the defendant-appellee

Seoul High Court Decision 80Na3721 delivered on February 2, 1981

The judgment below is reversed, and the case is remanded to Seoul High Court.

The defendant's attorney's grounds of appeal are examined.

According to the reasoning of the judgment below, in this case where the plaintiff sought the cancellation registration procedure of each of the above registrations on the ground that the security interest of the defendant was extinguished since the provisional registration for preserving the right to claim for ownership transfer registration made in the future and the obligation secured by the principal registration was deposited in the principal registration, and the security interest of the defendant was extinguished, the court below rejected the judgment of the court below holding that the attachment and assignment order of the non-party 1, the creditor of the plaintiff, who is the plaintiff, has no validity of the deposit since the non-party 1, who is the creditor of the plaintiff, collected the right to claim for the recovery of the plaintiff's deposit in whole by the seizure of the plaintiff's right to claim the recovery of the plaintiff's deposit. However, even though recognizing the facts of the defendant's assertion, it is reasonable to interpret Article 489 (2) of the Civil Act, which provides that the payer cannot recover the deposit, even if the right to claim for the recovery of the deposit is extinguished due to the deposit.

However, the provision of Article 489 of the Civil Act provides that, except in a case where the right of pledge or mortgage is extinguished due to deposit, the obligee shall approve the deposit or notify the depository of the receipt of the deposit, until the judgment with validity of deposit becomes final and conclusive, and in this case, the payer may recover the deposited goods and the deposited goods shall be deemed not to have been deposited. In the case where the provisional registration security right or the right of security for transfer ceases to exist due to deposit, it does not include the purport that the payer cannot recover the deposited goods even if the deposited goods are extinguished, and there is no ground to interpret the provision including the above case. Therefore, the deposit of the Plaintiff’s principal shall be recovered by the Plaintiff who is the payer pursuant to Article 489(1) of the Civil Act regardless of whether the Defendant’s right of security for provisional registration or security for transfer has been extinguished due to deposit. Accordingly, if Nonparty 1, the obligee against the Plaintiff collected the Plaintiff’s deposit with the entire claim for recovery of the deposited goods, it shall be deemed that the Plaintiff’s repayment deposit

Therefore, the court below rejected the defendant's argument disputing the validity of the above deposit on the grounds as stated in its reasoning, and the measure accepting the plaintiff's claim considering the plaintiff's repayment deposit as valid is erroneous in the misapprehension of legal principles under Article 489 of the Civil Code, and it is obvious that such illegality affected the result of the original judgment. Therefore, the appeal pointing this out cannot be reversed on the ground that the original judgment

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Il-young (Presiding Justice)