[1] The method of determining which kind of deposit is made by the depositor during the repayment deposit, execution deposit, or mixed deposit

[2] In a case where the deposited person claims the withdrawal of deposited goods at the mixed deposit, whether the document proving the existence of the right to claim the withdrawal of deposited goods in relation to the executory creditor should be prepared and submitted (affirmative)

[3] The case holding that in a case where Gap corporation transferred part of the goods payment claim against Eul corporation to Byung corporation, and thereafter Eul received the notification of transfer to Eul corporation as to the above claim, and Eul corporation deposited the goods payment with Gap corporation, Byung corporation, Byung corporation, and Jung corporation with the deposited person Gap corporation, Byung corporation, and Jung corporation with the deposited person; Byung filed a lawsuit to confirm the claim for payment of deposit payment against Byung corporation, Jung corporation, and the State, which confirmed Eul's claim for payment of deposit payment, and only the State filed an objection against this, the above deposit constitutes mixed deposit, and Eul corporation's decision to recommend a compromise with the purport that the claim for payment of deposit payment is confirmed to Byung corporation, Byung corporation, and Eul corporation's claim for payment of deposit payment of deposit was insufficient to file a claim for payment of deposit payment of deposit, and Byung corporation's decision to recommend a settlement with Gap corporation, Jung corporation, and Jung corporation with the deposited person Gap corporation and Jung corporation, etc.

[1] The deposit is made under the responsibility and judgment of the depositor. The depositor may choose the deposit for repayment, the execution deposit, or the mixed deposit in accordance with his/her own will. Whether the depositor has made any kind of deposit shall be determined by comprehensively and reasonably taking into account whether the deposited person is designated, the statutory provisions that form the basis for the deposit, the fact of the cause of the deposit, etc.

[2] In terms of the mixed deposit, the depositor is required to deposit not only the deposited parties but also the execution creditor, including the provisional seizure creditor, with the approval of the damage from the debt. In light of this purport, in the claim for the withdrawal of the deposited goods, it is insufficient that the deposited party has a document proving that the deposited person has the right to claim the withdrawal of deposited goods only in relation to the other deposited parties, and in relation to the above execution creditor, the document proving that the deposited person has the right to claim the withdrawal of deposited goods should be prepared and submitted.

[3] The case holding that in a case where Gap corporation filed a lawsuit to confirm the claim for payment of deposit money against Eul corporation, Eul corporation, and Eul corporation filed an objection against Eul corporation's transfer of part of the claim for payment of deposit money to Byung corporation, Eul corporation received the notification of transfer of remaining part of the claim in relation to the above claim, Eul corporation received the notification of provisional attachment of the above claim from the Credit Guarantee Fund, and Eul corporation received the notification of provisional attachment of the above claim, and Eul corporation's seizure of the above claim, and Eul corporation deposited the price of the goods with Gap corporation, Byung corporation, Eul corporation, and Eul corporation's company, Eul corporation, and Eul corporation's company, Eul corporation, and the Korea Credit Guarantee Fund, and Eul filed a lawsuit to confirm that the claim for payment of deposit money was transferred to Byung corporation, Eul corporation's claim for payment of deposit money, and the judgment below's claim for payment of deposit money can be seen as a combination of deposit money, and Eul corporation's claim for payment of deposit money can be seen as a lack of legal interest in the court's decision to seek payment of payment of deposit money.

[1] Article 487 of the Civil Act, Article 248(1) of the Civil Execution Act / [2] Article 487 of the Civil Act, Articles 248(1) and 291 of the Civil Execution Act, Article 9(1) of the Deposit Act, Article 33 subparag. 2 of the Deposit Rule / [3] Article 250 of the Civil Procedure Act, Article 487 of the Civil Act, Articles 248(1) and 291 of the Civil Execution Act, Article 9(1) of the Deposit Act, Article 33 subparag. 2 of the Deposit Rule

[1] Supreme Court Decision 2006Da74693 decided May 15, 2008 (Gong2008Sang, 844)

주식회사 에쎈텍네트웍스

Korea

Seoul Southern District Court Decision 201Na5429 decided August 11, 2011

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On June 1, 2010, Eurherel Co., Ltd. (hereinafter “Eurel”) transferred the portion of USD 25,000 among the goods payment claims of USD 35,957 to Eurur’s gold Development Co., Ltd. (hereinafter “gold Development Co., Ltd.”) (hereinafter “the instant goods payment claim”), and notified the Furher of the assignment of the said assignment to the Furherg Development Co., Ltd. by way of content-certified mail, and the notification reached the Furg Development Co., Ltd. on June 2, 2010.

B. After that, the Geumho Development Co., Ltd. received the notification of transfer of USD 10,957 in relation to the instant product price claim (hereinafter “actual information system”) on June 22, 2010. In addition, the Korea Credit Guarantee Fund’s decision of provisional seizure of the said claim on July 20, 2010 with the claim amounting to KRW 100 million as the claim amount, and ③ the Defendant was served on July 20, 2010 with the decision of seizing the said claim amounting to KRW 32,126,960, respectively.

C. On August 9, 2010, the Geumho Development Company deposited KRW 41,915,074 as the price for the goods ($ 35,957 x 1,165.7 x the applicable exchange rate on the day when the U.S. dollars was applied) with the Seoul Central District Court deposited KRW 14689 as the price for the goods (hereinafter “the deposit in this case”).

In the deposit of this case, the gold Development Company stated Article 487 of the Civil Act concerning the deposit for repayment as well as Articles 248(1) and 291 of the Civil Execution Act concerning the third obligor's execution deposit in the seizure and provisional seizure of claims, and further stated the reason that it is impossible to confirm the creditor due to concurrent assignment of claims, provisional seizure and seizure of claims as above.

D. The Plaintiff filed the instant lawsuit seeking confirmation of the claim for payment of deposit money against the Defendant, the Co-Defendant Baur, the practical information system, and the Korea Credit Guarantee Fund (Seoul Southern District Court 2010 group (Case No. 2010 group)). On December 10, 2010, the court rendered a ruling of recommending settlement with the purport that the Plaintiff’s claim for payment of deposit money of KRW 29,142,50 among the instant deposit money against Eurur, etc. is confirmed as being the Plaintiff. Accordingly, the Plaintiff and Eurur, the practical information system, and the Korea Credit Guarantee Fund did not raise any objection to the said decision of recommending settlement, and the said decision of recommending settlement became final and conclusive by March 1, 2011 among the above parties. However, the Defendant raised an objection, that is, the first instance court’s assertion that the claim for the prohibition of payment of the instant goods is invalid, and thus, the Plaintiff’s claim for payment of the said special agreement cannot be considered as bad faith or gross negligence.

2. The lower court ex officio rendered a judgment dismissing the instant lawsuit as follows.

The plaintiff can file a claim for payment of deposit money with the above decision of recommending settlement as it constitutes a document evidencing that the depositor, other than the plaintiff, has the right to claim payment of deposit money. Therefore, seeking confirmation of the right to claim payment of deposit money against the defendant who falls under a third party who is not the victim of deposit does not have a benefit of confirmation.

3. The deposit is made under the responsibility and judgment of the depositor. The depositor may select the deposit for repayment, the execution deposit, or the mixed deposit in accordance with his/her own will. Whether the depositor has made any kind of deposit or not should be determined by comprehensively and reasonably considering whether the deposited person is designated, the statutory provisions on which the basis of the deposit is made, the fact of the cause of the deposit, etc. (see Supreme Court Decision 2006Da74693, May 15, 2008, etc.).

In addition, in the case of mixed deposits, the depositor is required to deposit not only the deposited parties but also the execution creditor, including the provisional seizure creditor, with the approval of the damage from the debt.In light of this purpose, in claiming the withdrawal of the deposited goods, it is not sufficient that the deposited parties have the document proving that the deposited parties have the right to claim the withdrawal of the deposited goods only in relation to the other deposited parties, and in relation to the above execution creditor, the document proving that the right to claim the withdrawal of deposited goods has the right to claim the withdrawal of deposited goods should be prepared and submitted.

4. Examining the above legal principles in light of the above, it is reasonable to conclude that the deposit of this case is a mixed deposit with the nature of the execution deposit as well as the payment deposit in comprehensive consideration of the provisions of the Acts and subordinate statutes, the statement of the cause of the deposit, and the circumstances leading to the deposit of this case, etc. Furthermore, it is insufficient to claim the withdrawal of the deposited goods of this case as the execution creditor, and it is reasonable to view that the plaintiff has legal interest in seeking confirmation of the claim for the withdrawal of the deposited goods against the defendant who is disputing the plaintiff's right as the execution creditor.

Nevertheless, the court below erred by misapprehending the legal principles as to the interest in the mixed deposit and confirmation in the lawsuit of this case, and thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)