[1] The order of appropriation of expenses, interest, and principal for appropriation of performance, and whether the appropriation can be recognized by implied agreement between the parties (affirmative)

[2] The case holding that there is room to view that there was an implied agreement between the parties to appropriate funds in the order of appropriation of appropriation under Article 479 of the Civil Code, different from that of appropriation of appropriation

[3] The validity of a deposit for repayment in a case where the deposit amount is extremely insufficient in light of the total amount of obligations (effective)

[1] The order of appropriation for payment of expenses, interest, and principal is stipulated in Article 479 of the Civil Code, and Article 476 of the same Act does not apply mutatis mutandis to the appropriation for payment of expenses, interest, and principal. Therefore, the order of appropriation shall be appropriated in the order of the expenses, interest, and principal, unless there is any special agreement between the parties. Although the debtor and the creditor cannot designate the order of appropriation unilaterally differently from the above legal order, if the other party's unilateral designation is considered to have reached an implied agreement by failing to raise an objection without delay, the order of appropriation may be recognized differently from the order of appropriation for payment.

[2] The case holding that there is room to view that there was an implied agreement between the parties to appropriate funds in the order of appropriation of appropriation under Article 479 of the Civil Code, different from that of appropriation of appropriation

[3] In a case where the amount of deposit made by a creditor to the creditor is extremely small compared to the total amount of the debt, the deposit shall be deemed valid under the principle of good faith.

[1] Articles 476 and 479 of the Civil Act / [2] Articles 476 and 479 of the Civil Act / [3] Articles 2 and 487 of the Civil Act

[1] Supreme Court Decision 80Da3009 decided May 26, 1981 (Gong1981, 13982), Supreme Court Decision 90Meu7262 decided Nov. 9, 1990 (Gong1991, 39), Supreme Court Decision 97Da48562 decided Apr. 24, 1998 (Gong2001Ha, 1834), Supreme Court Decision 2001Da1649 decided Jul. 10, 2001 (Gong2001Ha, 1834), Supreme Court Decision 2001Da60767 decided Jan. 11, 2002 (Gong202Sang, 470) / [3] Supreme Court Decision 86Meu86969 decided Jun. 16, 198 (Gong19689 decided Jun. 16, 196)

Plaintiff (Counterclaim Defendant)

Daeyang Metal Co., Ltd. (Attorney Park Jong-young, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2001Na27083, 38694 delivered on January 15, 2002

The part of the lower judgment against the Plaintiff (Counterclaim Defendant) is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant (Counterclaim Plaintiff)’s appeal is dismissed. The costs of appeal on the dismissal of appeal are assessed against the Defendant (Counterclaim Plaintiff).

We examine the grounds of appeal.

1. As to the Defendant-Counterclaim Plaintiff’s appeal

According to the reasoning of the judgment below, the court below acknowledged that the plaintiff (the counter-party defendant; hereinafter referred to as the "Plaintiff") and the defendant (the counter-party plaintiff; hereinafter referred to as the "defendant") determined the plaintiff's obligation to pay interest at the rate of 13% per annum on March 31, 1999 when determining the plaintiff's obligation to pay the plaintiff's goods amounting to 88,259,505 won. Unless otherwise specified, the interest rate for the obligation under the agreement of this case is equally 13% per annum. On the other hand, the agreement of this case has lost its effect due to the plaintiff's non-performance of obligation, and thus the plaintiff has a duty to pay damages for delay at the rate of 25% per annum as agreed at the time of the original transaction of the goods of this case or the contract to establish a right to collateral security. In light of the records and records of the judgment below, the court below's fact finding and judgment are acceptable, and there is no violation of law of misunderstanding of facts as alleged.

2. As to the Plaintiff’s appeal

A. Judgment on the effect of appropriation of performance

With respect to the appropriation of performance to the expenses, interest, and principal, Article 479 of the Civil Act is stipulated in the order of appropriation, and Article 476 of the same Act concerning the appropriation of performance does not apply mutatis mutandis. Thus, barring any special agreement between the parties, the order of appropriation shall be appropriated in the order of the expenses, interest, and principal, and even though the debtor and the creditor are not the debtor, the order of appropriation cannot be designated unilaterally differently from the above order of the court. However, if the other party appears to have reached an implied agreement by failing to raise an objection without delay, the order of appropriation may be recognized differently from the order of appropriation (see, e.g., Supreme Court Decisions 80Da3009, May 26, 1981; 90Meu7262, Nov. 9, 1990; 97Da48562, Apr. 24, 1998).

However, according to the records, the plaintiff, while entering into the agreement with the defendant on March 31, 199, determined that the remaining amount of credit payment to the defendant was KRW 8,259,505, and paid interest at the rate of KRW 13% per annum. However, the court below determined that the plaintiff did not pay the defendant the above amount of credit payment at KRW 30,500,000,000,000,00 won per annum of KRW 30,000,000,000 won per annum of KRW 50,000,000,000 won per annum of KRW 30,000,000,000,000 won per annum of KRW 5,000,000,000,000 per annum of KRW 5,000,000,000,000,000,000 won per annum of KRW 5,05,000,00.

B. Determination on the validity, etc. of partial payment deposit

In a case where the amount of deposit made by a person performing obligation to a creditor is extremely insufficient compared to the total amount of the obligation, the deposit for payment shall be deemed valid under the good faith principle (see, e.g., Supreme Court Decisions 86Da14616, Jul. 26, 1996; 98Da17046, Oct. 13, 1998; 98Da17046, Oct. 31, 200). According to the reasoning of the lower judgment, the Plaintiff deposited KRW 69,384,761, which is less than KRW 69,135,945, which is less than 69,135,945, which is less than the total amount of the obligation. Meanwhile, according to the records, the Plaintiff’s principal subject to dispute with the Defendant at the time of the deposit in this case shall be 13% of damages for delay, or 25% of the total amount of the deposit in this case shall be 135% of the damages for delay.

In addition, according to Gap evidence No. 7 (Deposit), the plaintiff deposited 1,857,484 won in the defendant's future on May 12, 2001. If the deposit is partially made, there is no possibility that the deposit will take effect as repayment at the time of deposit, but if the defendant reserved and received an objection to the deposit thereafter, the repayment can take effect at the time of receipt. Thus, if the defendant reserved and received the objection, the court below should have deliberated on the issue of whether the defendant received the deposit as evidence. However, the court below erred in failing to exhaust all necessary deliberations.

3. Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's appeal is dismissed, and the costs of appeal as to the dismissal of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating

Justices Lee Jae-in (Presiding Justice)