[1] In a case where a mortgagee of chonsegwon has received an order of seizure, collection, and assignment of a claim for the return of deposit money, whether the settlor of chonsegwon bears the obligation to pay the remaining deposit money directly to the mortgagee (affirmative), and in such a case, whether the obligation to return the deposit money to the settlor of chonsegwon and to deliver documents necessary for the registration of cancellation of the registration of the establishment of the right to lease on a deposit basis

[2] Where a mortgagee of a right to lease on a deposit basis has received an attachment and assignment order against a claim for the return of lease on a deposit basis, the time the effect thereof takes effect (the date of registration

[1] If the chonsegwon is extinguished, the settlor of chonsegwon has the obligation to receive documents necessary for the delivery of the subject matter and the cancellation registration of the registration of the establishment of chonsegwon from the mortgagee and to return the deposit money at the same time. If the right to lease on a deposit basis has been mortgaged, the settlor of chonsegwon bears the obligation to return the deposit money only to the mortgagee unless there is any seizure by a third party on the claim to return the deposit money if the right to lease on a deposit basis has expired. However, if the mortgagee has received an attachment, collection, assignment order, etc. on the above claim to return the deposit money, the settlor of chonsegwon bears the obligation to directly pay the remaining deposit money to the mortgagee. In this case, the obligation to return the deposit money to the settlor of chonsegwon and to deliver documents necessary for the registration of the cancellation of the registration

[2] Even if another creditor's provisional attachment against a claim for the return of deposit money has been issued with an order to exercise the subrogation right based on the right to lease on a deposit basis, its validity takes effect retroactively from the date of registration of the right to lease on a deposit basis, so if the provisional attachment date of another creditor is more severe than that of the provisional attachment date,

[1] Articles 317, 342, 370, and 371 of the Civil Act; Article 273 of the Civil Execution Act / [2] Articles 342, 370, and 371 of the Civil Act; Articles 229, 231, and 273 of the Civil Execution Act

[1] Supreme Court Decision 98Da31301 delivered on September 17, 1999 (Gong1999Ha, 2178)

Commercial mutual savings banks

Opopon et al.

1. Defendant Ohyeong-chan ordered Defendant Ho Ho Construction Co., Ltd. to order the real estate listed in the separate sheet, and issued documents necessary for the registration of cancellation of the right to lease on a deposit basis, which was made under No. 1603 on April 30, 199 with respect to the above real estate.

2. On April 30, 1999, the Defendant Ho Ho Ho Construction Co., Ltd. received necessary documents from the Plaintiff on April 30, 199 for the registration of cancellation of the establishment of a right to lease on a deposit basis, which was made under No. 16062 on April 30, 199, and received documents necessary for the registration of cancellation of the registration of the establishment of a right to lease on a deposit basis, and paid KRW 11,973,326

3. The plaintiff's remaining claims against the defendant Hocom Construction Co., Ltd. are dismissed.

4. The costs of lawsuit shall be borne by the defendants.

5. The above paragraphs 1 and 2 can be provisionally executed.

The main text Paragraph 1 and the defendant Hocom Construction Co., Ltd. shall pay KRW 11,973,326 to the plaintiff at the same time as the real estate listed in the attached list is ordered.

1. Basic facts

A. On September 27, 200, the Defendant Ohyeong entered into a lease agreement (hereinafter “instant lease agreement”) with the Defendant Ho Ho Ho Construction Co., Ltd. on the condition that the lease deposit shall be KRW 23,500,000 (hereinafter “the instant real estate”) on the attached list owned by the Defendant Ho Ho Ho Construction, and that the lease agreement shall be concluded on April 30, 199 (hereinafter “the instant lease agreement”). On the ground of the contract under the receipt of the mining registration office of the court No. 1603 on March 17, 199 as of March 17, 199, the term of the lease deposit shall be KRW 23,50,000, and from September 25, 1998 to September 24, 200, the return period shall be September 24, 200, and around September 24, 200, the registration of the establishment of chonsegwon was completed.

B. On April 30, 199, the Plaintiff received a mining registration office of this court under Article 16062 on April 28, 1999, registered the establishment of the right to lease on a deposit basis, which was the amount of 13,000,000 won due to the contract on April 28, 199, until the due date is fully paid. On September 27, 2000, the Plaintiff completed the registration of the establishment of the right to lease on a deposit basis, which was the Plaintiff as the mortgagee, and lent KRW 10,000,000,000 to the Defendant Orju at an annual interest rate of 13.8% on September 27, 200. On December 10, 200, the court applied for the attachment order and assignment order (hereinafter referred to as the "right to lease on a deposit basis") with the entire right to claim the return of the right to lease on a deposit basis, which was to be paid by Defendant Ohyeong Construction as KRW 13,000, 200.

[Basis for recognition] Defendant Magaz.: Judgment by Service of Public Notice (Article 208(3)3 of the Civil Procedure Act)

Defendant Hocom Construction: Facts without any dispute, Gap evidence 1 through 4, Gap evidence 5-1 and 5-2, and the whole purport of oral argument

2. Determination:

A. The settlor of chonsegwon has the obligation to receive documents necessary for the delivery of the subject matter of chonsegwon and the cancellation registration of the registration of the establishment of chonsegwon from the person having chonsegwon if the chonsegwon has been extinguished. If the right to lease on a deposit basis has been established, the settlor of chonsegwon bears the obligation to return the deposit only to the person having chonsegwon unless there is any seizure by a third party on the claim to return the deposit. However, if the mortgagee has received an attachment, collection and assignment order on the claim to return the deposit, he shall be deemed to have the obligation to pay the remaining deposit directly to the person having chonsegwon. In this case, the obligation to return the deposit to the settlor of chonsegwon and to deliver documents necessary for the registration of the cancellation of the registration of the establishment of the right to lease on a deposit basis shall be deemed to have a relation of performance,

B. According to the above facts, it is evident that the lease contract of this case has been terminated, and therefore, the defendant Ho Ho-ju has the obligation to issue the pertinent real estate to the defendant Ho-gun and deliver the documents required for the registration of cancellation of the registration of the establishment of the above right to lease on a deposit basis. The defendant Ho-Gyeong Construction is obligated to deliver the documents required for the registration of cancellation of the establishment of the above right to lease on a deposit basis with the plaintiff and to pay 11,973,326 won to the plaintiff at the same time as the delivery of documents necessary for the registration of cancellation of the above right to lease on a deposit basis and documents necessary for the registration of cancellation of the registration

C. Determination as to the remainder of the argument of Defendant Hocom Construction

Defendant Ho-J Construction asserts that the assignment order of this case is null and void due to the existence of other creditors, such as the provisional attachment by the National Bank of Korea, etc., with respect to the claim for the refund of the deposit money of this case. Thus, according to each of the evidence Nos. 1 and 2, it is true that the National Bank of Korea issued a provisional attachment on January 7, 2002 with respect to the claim for the refund of deposit money of this case, and on March 23, 2002, as long as the Plaintiff received the entire order of this case in order to exercise the subrogation right based on the right of lease on a deposit basis, the effect of the provisional attachment does not affect the validity of the assignment order of this case, because each of the provisional attachment date of this case would obviously affect the validity of the assignment order of this case. Thus, the above assertion of Defendant Ho-J Construction is without merit.

3. Conclusion

If so, the plaintiff's claim against the defendant's Obaeng shall be accepted on the ground of the reasons, and the plaintiff's claim against the defendant's Obaeng Construction shall be accepted within the scope of the above recognition, and the remaining claim shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges Man-man