Whether a third party, other than the party to whom an order to provide security has been issued, can effectively provide security for the party by stating in a deposit document the purport that the security is deposited on behalf of the party (affirmative)

Articles 500 and 501 of the Civil Procedure Act

Applicant 1 and two others (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

American Housing Redevelopment and Improvement Project Association

Seoul Northern District Court Order 2019Kadan10102 dated July 15, 2019

The order of the court below is reversed, and the case is remanded to the Seoul Northern District Court.

The grounds of special appeal are examined.

1. In the case of applying for the suspension of compulsory execution against real estate, there is no ground to view that only the parties who received an order to provide security must provide security. Thus, not only the parties who received an order to provide security but also third parties may provide security for the parties as well as the parties who received an order to deposit security on behalf of the parties.

2. According to the records, the respondent has won a lawsuit against the special appellant and the Foundation Foundation Foundation Foundation Foundation Foundation Foundation Foundation Foundation Foundation Foundation Foundation Foundation Foundation Foundation (hereinafter "the Foundation Foundation Foundation") by filing a lawsuit for delivery of buildings, etc., the applicant appealeds therefrom and applied for a suspension of compulsory execution based on the judgment of the court of first instance. The court below ordered the applicant to deposit KRW 150 million to the respondent as security. The non-party Foundation deposited KRW 150 million in accordance with the order to provide security, and at the same time applied for a deposit as a third party at the same time for the special appellant, the non-party Foundation made a decision to suspend compulsory execution against the non-party foundation and rejected the application for suspension of compulsory execution on the ground that the non-party foundation did not provide security to the special appellant.

3. Examining in light of the legal principles as seen earlier, a third party, who is not a party to whom the order to provide security was issued, may deposit the security effectively by stating that the third party, who is not a party, may deposit the security on behalf of the party. Thus, inasmuch as one of the co-litigants who received the order to provide security, the non-party foundation, who is a co-litigants, clearly stated the intent to deposit the security as a third party for the other co-litigants, the effect of the order to provide

Therefore, the order of the court below that dismissed the application for the suspension of compulsory execution by the special appellant is erroneous in the violation of the Constitution that affected the trial by infringing the right of the special appellant to receive a fair trial according to legitimate procedures.

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

Justices Kim Jong-hee (Presiding Justice)