[1] Whether Article 52(1) of the Rules on the Management of Deposit Affairs provides for the duty to report the reason to the court of execution to the deposit official in the event of competition, such as seizure of the right to claim for withdrawal or recovery of deposit (affirmative)

[2] Whether a deposit official is negligent in performing the deposit affairs in a case where a seizure order is issued against the right to claim the recovery of the provisional seizure or release deposit, which is the Supreme Court's established rules for the case (affirmative)

[3] The case concerning the occupational measures to be taken by the deposited public official, where the seizure and collection order for the right to claim the recovery of the deposit from the sea exists concurrently

[1] Article 52(1) of the Rules on the Handling of Deposit Affairs provides that "if a reason for filing a report occurs due to competition, such as seizure of the right to claim the withdrawal or collection of the deposit money, etc., the deposit public official shall prepare two copies of the reason report without delay and send one copy thereof to the competent court of execution, and the other one shall be bound by the relevant deposit records." This provision is not a detailed provision for the detailed procedure in the case where the deposit public official files a report on the reason, but a joint seizure of the right to claim the withdrawal or collection of the deposit, etc. is not a provision for the duty to report the reason to the court of execution.

[2] The Supreme Court's established rules stipulate that "the time of report, etc. in the case of an order of seizure against the right to claim the recovery of the deposit amount for provisional seizure" (No. 35 of May 23, 1984) is that "the deposit official shall report without delay to the court of execution when the order of seizure is served with respect to the right to claim the recovery of the deposit amount for provisional seizure." Thus, this established rules cannot be interpreted differently because the Supreme Court has expressed its opinion on the interpretation of Article 52 (1) of the Rules on the Management of Deposits and Article 581 of the former Civil Procedure Act (wholly amended by Act No. 6626 of January 26, 2002) and Article 581 of the former Civil Procedure Act (wholly amended by Act No. 6626 of Jan. 26, 2002). Thus, insofar as the above established rules clearly state the above interpretation, it cannot be interpreted differently from the above established rules concerning deposit affairs.

[3] The case holding that the court below erred in the misapprehension of legal principles as to the management of affairs of the deposited public official, since the deposited public official did not report the reason to the court of execution and paid the deposited money to each creditor in installments in accordance with the distribution procedure of the court of execution, or can pay the deposited money to one creditor of the seizure and collection who applied for the withdrawal of the deposited money without reporting the reason to the court of execution, and the deposited public official did not report the reason to the court of execution and paid the deposited money in full to the creditor who requested the withdrawal of the deposited money as one of the creditors.

[1] Article 581(1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 248(1) of the Civil Execution Act), Article 52(1) of the Rules on the Handling of Deposit Affairs / [2] Article 581(1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 248(1) of the Civil Execution Act), Article 52(1) of the Rules on the Handling of Deposit Affairs / [3] Article 581(1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 248(1) of the Civil Execution Act), Article 52(1) of the Rules on the Handling of Deposit Affairs

Plaintiff (Attorney Lee Jong-il, Counsel for plaintiff-appellant)

Korea

Seoul High Court Decision 2001Na22491 delivered on October 17, 2001

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. The facts duly established by the court below are as follows.

A. On May 4, 1996, in order to preserve the damage claim amounting to KRW 200 million against the natural development of the corporation, the Nonparty received a provisional attachment order on real estate owned by nature development, and on May 27, 1997, deposited the amount of KRW 200 million from the provisional attachment release on May 27, 1997 (No. 174, 1997, Jinju District Court) and was revoked the execution of the provisional attachment order.

B. On December 23, 1997, the Nonparty received a seizure and collection order (Seoul District Court 97tagi1798, 17988, 1799) against the Defendant of the natural cultivation, and the seizure and collection order was served on the Defendant, who is the garnishee, on December 30, 1997.

C. Meanwhile, on September 15, 1998, the Plaintiff received a collection order for the claim for the collection of the above amount of KRW 196,330,958 for natural development (Seoul District Court 98 Ma18791, 18792) on September 15, 1998 (Seoul District Court 98 Maga18791, 18792), and the seizure and collection order was served on the Defendant, who is the garnishee on September 17, 1998.

D. On September 20, 1998, the Nonparty, based on his seizure and collection order, demanded the withdrawal of the above amount of the deposit from Suwon District Court to the branch court of Suwon District Court, based on which the Nonparty received the full amount of the deposit with the authorization of the deposit officer belonging to the Defendant.

2. The plaintiff's assertion

The Plaintiff, inasmuch as there exists competition between the Nonparty’s order of seizure and the Plaintiff’s order of seizure and collection, and thus, the Defendant’s deposited public official, in accordance with the rules on deposit affairs and the Supreme Court’s established rules, had the duty to report the reason to the court of execution while maintaining the deposit. However, in violation of such duty of duty, the Plaintiff, who approved the withdrawal of the deposit against the Nonparty, sustained losses from receiving the money that would have been distributed from the court of execution if the deposit had been maintained, and filed a claim against the Defendant

3. The judgment of the court below

The lower court dismissed the Plaintiff’s claim for the following reasons.

A. In a case where a demand for distribution or seizure has been made with respect to the seized monetary claims, the garnishee has the right to deposit under Article 581(1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002; hereinafter “the Act”), and the third obligor is exempted from his/her obligation by deposit. However, in such a case, the third obligor has the right to deposit, and there is no obligation to deposit with him/her.

B. The third obligor, i.e., the deposit public official has the right to report the reason in lieu of the deposit under Article 581(1) of the Act, and the public official has no obligation to report the reason under Article 581(2) of the Act. Thus, if the creditor who received the collection order claims the withdrawal of the deposit, if the deposited public official claims the withdrawal of the deposit, the deposit procedure is lawfully terminated by paying the deposit to him, and the creditor should again deposit his own deposit to the court and report the reason therefor, and receive the distribution from the court of execution.

C. According to the Supreme Court's established rules, "the time of report, etc. in the case of an order of seizure against the right to claim the recovery of the deposit for release from provisional seizure" (No. 35 of May 23, 1984) provides that "the deposit official shall report without delay the reason to the executing court when the order of seizure is served with respect to the right to claim the recovery of the deposit for release from provisional seizure" (see Supreme Court Decision 84-6, May 23, 1984). However, the established rules do not mean that the deposit official imposes an official duty to make a report

D. Article 52(1) of the Rules on the Handling of Deposit Affairs provides that "if a reason for filing a report occurs due to competition, such as seizure of the right to claim the withdrawal or collection of deposit money, etc., the deposit official shall prepare two copies of the reason report without delay and send one copy thereof to the competent enforcement court, and the other copy shall be bound by the deposit records in question." However, it cannot be deemed that the deposit official who does not comply with the detailed procedures in the case of filing a reason report imposes a duty to report the reason on the deposit official.

E. Thus, in this case, the deposit procedure is completed by the deposit officer to the non-party who made the claim for payment of deposit money as the creditor of collection, and the seizure by the plaintiff was concurrent, and thus, the non-party should deposit the deposit money he received from the court of execution and receive the distribution from the court of execution. If the non-party did not take such procedure, the plaintiff should have filed a lawsuit claiming deposit against the non-party. Thus, it is difficult to view that the non-party was negligent on the part of the deposit officer who lawfully paid the deposit money, on the ground of the ex post facto circumstance that the non-party could not bring a lawsuit against the non-party without taking the above measures after receiving the deposit money.

4. However, we cannot agree with the judgment of the court below for the following reasons.

A. If the seizure concurrently takes place by means of the seizure and collection order of other creditors after the creditor who issued a monetary claim has issued a seizure and collection order, the garnishee may deposit the amount of debt pursuant to Article 581(1) of the Act (see Supreme Court Decision 96Da5179, Jun. 14, 1996), or pay the amount of debt to one of the creditors who received the seizure and collection order, within the scope of the amount received by the seizure and collection order. In the case of the former, the garnishee who deposited the amount of debt shall report the reason thereof to the execution court (Article 581(3) of the Act), and unless there are special circumstances under the special order, the execution court shall commence the distribution procedure without delay. In the latter case, the creditor who received the amount of debt shall deposit the amount received without delay and report the reason therefor to the execution court (Article 569(2) of the Act).

B. The court below determined that, in the case of this case where the seizure and collection order for the right to claim for the recovery of the amount of the deposit for marine damage competes with each other, the deposit official belonging to the third debtor may pay the deposit to each creditor in installments in accordance with the distribution procedure of the court of execution after maintaining the deposit and reporting the reason to the court of execution. However, the court below determined that the deposit may be paid to one creditor for the seizure and collection who applied for the withdrawal of the deposit without reporting the reason thereof (Article 2 of the Deposit Act) as the deposit officer (Article 2 of the Deposit Act), and that the administrative affairs of which are designated by the chief of the district court or the branch court of the district court as the deposit officer shall be the deposit officer (Article 2 of the Deposit Act), if the seizure of the right to claim for the recovery of the amount of deposit for marine damage conflicts with those of the court of execution, it cannot be interpreted as the opinion of the court concerning the occupational measures to be taken by the deposit official to be taken. If the deposit official has received the deposit in compliance with the order of the creditor's deposit without any reason for the deposit.

Article 52(1) of the Rules on the Handling of Deposit Affairs provides that "if a reason for filing a report occurs due to competition, etc. with regard to the right to claim the withdrawal or collection of deposit money, etc., the deposit public official shall prepare two copies of the reason report without delay, send one copy thereof to the competent enforcement court, and the other one shall be bound by the relevant deposit records." This provision provides that "if the deposit public official files a report of the reason for filing a report, the deposit official shall be bound by the duty to report the reason to the executing court, not by the detailed procedure, but by the concurrent seizure of the right to claim the withdrawal or collection of deposit money."

On the other hand, the Supreme Court's established rules stipulate that "the time of report, etc. in the case of an order of seizure against the right to claim the recovery of the deposit for provisional seizure" (No. 35 of May 23, 1984) shall be "the deposit official shall report without delay to the court of execution when the order of seizure is served with respect to the right to claim the recovery of the deposit for provisional seizure." This established rules aim to eliminate confusion in practice that may arise surrounding the interpretation by stating the Supreme Court's opinion on the interpretation of Articles 52 (1) and 581 of the Rules on the Management of Deposit Affairs in light of the purport of the deposit system as above. Thus, insofar as the above established rules clearly state the above interpretation, it cannot be said that there was no negligence in handling the deposit affairs differently from the above established rules, on the ground that it is possible to interpret other interpretation on the interpretation of Article 52 (1) or 581 of the Rules on the Management of Deposit Affairs.

C. Therefore, the court below erred in the misapprehension of legal principles as to the handling of the affairs of deposit officials, where the court below held that the deposit official, without reporting the reason to the executing court, paid the full amount of the deposit to the non-party who requested the payment of deposit money as one of the creditors, when the seizure and collection order for the claim for the collection of deposit money of this case was concurrent based on the different opinions.

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

Justices Zwon (Presiding Justice)