[1] The scope of application of the deposit grounds under Article 61 (2) 4 of the Land Expropriation Act

[2] In a case where the original meaning of the claim for compensation for losses does not coincide with any other seizure, and such appearance exists, whether the exemption from liability by deposit can be granted by analogy of Article 581(1) of the Civil Procedure Act (affirmative with qualification)

[3] The time limit where the mortgagee can estimate the claim for compensation due to the adjudication of expropriation based on the subrogation right

[4] The purport of Article 581(1) of the Civil Procedure Act

[5] The case holding that the deposit of compensation for losses is valid by applying Article 581 (1) of the Civil Procedure Act mutatis mutandis, on the ground that there are objective circumstances which make it difficult to judge whether seizure

[1] Article 61 (2) 4 of the Land Expropriation Act, which recognizes that the payment of compensation is prohibited due to the seizure or provisional seizure of compensation for losses, is based on the premise that the claim for compensation for losses belongs to the recipient. However, it applies to the case where the recipient cannot pay compensation for losses directly due to the seizure or provisional seizure. Furthermore, it does not apply to the case where the recipient of compensation for losses is changed, i.e., where the assignment order for the claim for compensation for losses was issued.

[2] In cases where the appearance of a claim for compensation for losses is the same as that of seizure, if there are objective circumstances where it would be difficult to determine whether there exists competition between seizure and the third party obligor's view, it is reasonable to allow the business operator to be exempted from liability by deposit by analogy of Article 581 (1) of the Civil Procedure Act, even if it cannot be viewed as competition in the original sense.

[3] Even if the claim for compensation has been transferred to another person by transfer or assignment order before the seizure by the subrogation right holder, it is possible to estimate the claim even before the payment of compensation has been made directly or the completion period to demand a distribution has reached in the compulsory execution procedure concerning the claim for compensation.

[4] The reason for recognizing the right to deposit the amount of debt with the garnishee under Article 581 (1) of the Civil Procedure Act is to eliminate the damage because it is extremely heavy to the garnishee, and it is likely that the damage would be harmed to the third debtor, in case where there are many persons who assert the right to claim the amount of debt in the compulsory execution procedure against the claim, and the above amount of debt cannot be satisfied with all persons.

[5] The case holding that the deposit of compensation for losses is valid by applying Article 581 (1) of the Civil Procedure Act mutatis mutandis, on the ground that there are objective circumstances that make it difficult to judge competition between seizure

[1] Article 61(2)4 of the Land Expropriation Act; Articles 557, 563, 564, and 696 of the Civil Procedure Act / [2] Article 581(1) of the Civil Procedure Act; Article 487 of the Civil Act / [3] Articles 342, 370, and 449 of the Civil Act; Articles 557, 563, 580, and 733 of the Civil Procedure Act / [4] Article 581(1) of the Civil Procedure Act / [5] Article 581(1) of the Civil Procedure Act

[1] Supreme Court Decision 98Da12812 delivered on September 22, 1998 (Gong1998Ha, 2552) / [2] Supreme Court Decision 96Da5179 delivered on June 14, 1996 (Gong1996Ha, 2176), Supreme Court Decision 98Da62688 delivered on May 14, 199 (Gong1999Sang, 1159), Supreme Court Decision 99Da35256 delivered on November 26, 199 (Gong200Sang, 39) / [3] Supreme Court Decision 98Da12812 delivered on September 22, 199 (Gong198Ha, 252) / [3] Supreme Court Decision 2008Da482949 delivered on May 14, 2012]

Plaintiff

Sungnam-si (Law Firm Mannam, Attorneys Kim Byung-kick et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 98Na4097 delivered on May 19, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. According to the reasoning of the lower judgment, the lower court determined that the Defendant was liable for the payment of compensation to Nonparty 1, the Plaintiff’s 6-year attachment order of KRW 410,50,00,000, and that the Defendant was not liable for the payment of compensation to Nonparty 1, 6-year attachment order of KRW 1,000,000, KRW 96-2,000,000, and KRW 9-6,000,000, KRW 7,000,000,000, KRW 96-6,000,000,000,000,000, KRW 1,5,000,000,000,000, KRW 1,5,000,000,00,000,000,000,000,000,00,00,000,00.

2. The Land Expropriation Act recognizes the case where the payment of compensation is prohibited due to the seizure or provisional seizure of compensation for losses as separate reasons for deposit (Article 61(2)4). The above provision applies to the case where the public project operator is unable to pay compensation for losses directly to the recipient due to the seizure or provisional seizure, etc. on the premise that the claim for compensation for losses belongs to the recipient, but it does not apply to the case where the principal owner of compensation for losses is changed, i.e., where the assignment order for the claim for compensation for losses was issued.

In this respect, the judgment of the court below that Article 61 (2) 4 of the Land Expropriation Act is immediately applicable to the case where there is a seizure and assignment order on the compensation claim is erroneous.

3. However, in cases where the external appearance, such as the concurrent seizure of the claim for compensation for losses, exists, if there are objective circumstances where it is difficult to determine whether there exists competition between seizure and the third party obligor’s view, it is reasonable to allow public project operators to be granted exemption from liability by deposit by applying Article 581(1) of the Civil Procedure Act mutatis mutandis (see, e.g., Supreme Court Decisions 96Da5179, Jun. 14, 1996; 98Da62688, May 14, 1999; 9Da35256, Nov. 26, 1999).

In the instant case, the record reveals that a large number of establishment registration was completed prior to the attachment and assignment order as to the land and building subject to the above expropriation, including the establishment registration of a mortgage near the non-party mutual savings and finance company as a mortgagee. Even if the claim for compensation was transferred to another person by the transfer or assignment order prior to the attachment by the subrogation right holder, it is still possible to estimate the claim until the completion period for the compulsory execution procedure concerning the claim for distribution is reached (see Supreme Court Decision 98Da12812, Sept. 22, 1998). In such a case, even if the general creditor seized the compensation more than the creditor having priority than the above creditor, it may be considered that the collection of the compensation was not effective as impairing the right of the priority holder, and the reason for recognizing the right to deposit the claim to the third party under Article 581(1) of the Civil Procedure Act is extremely high to have the right holder’s right to claim the above provisional attachment and assignment order imposed on each of the above third parties (see Supreme Court Decision 98Da19814, supra.).

Therefore, while the court below erred by misapprehending the legal principles as to the permission of deposit under the Land Expropriation Act, it is just in its conclusion that the court below’s determination that the deposit of compensation for losses in this case is valid, and it cannot be said that there were errors by misapprehending the legal principles as to assignment order, which affected the conclusion of the judgment.

4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)