[1] Whether a security deposited by a debtor for the suspension of compulsory execution against a title of execution guarantees a basic claim itself based on the title of execution subject to the suspension of compulsory execution (negative) / In a case where a person under deposit claims the withdrawal of the above security deposit, whether the deposit officer shall confirm whether the person under deposit claims the withdrawal of deposit based on the right to claim the withdrawal of deposit and the right to claim the recovery of the deposit by the claimant based on the right to claim the withdrawal of deposit, and whether the document required in each case is submitted (affirmative), and in a case where the document is not confirmed, whether the deposit officer shall order the correction or make a decision on non-acceptance

[2] Details and scope of the right of examination held by the depositor to request for withdrawal or withdrawal of deposited goods

[1] Security that an obligor under the executive title deposits for the suspension of compulsory execution against the executive title (hereinafter “judicial security deposit”) is aimed at securing damages and losses that may arise to the obligee due to the suspension of compulsory execution. Therefore, the underlying claim itself based on the executive title subject to the suspension of compulsory execution is not secured.

Therefore, the deposit officer in receipt of a claim for payment of judicial security deposit from the person under deposit shall first verify whether the person under deposit claims based on his/her right to claim payment of deposit money, or whether the person under deposit claims based on his/her right to claim payment of deposit money, or the person under deposit claims based on a seizure and collection order of the deposit holder's right to claim collection of deposit money, or whether the person under deposit claims based on a final and conclusive judgment on the cause of deposit, i.e., a document evidencing that the secured claim has occurred in the former case, i.e., a document that proves that the final and conclusive judgment on the damage claim due to the suspension of compulsory execution, which is the secured claim, has been submitted, or whether the consent of the depositor has been submitted, in the latter case, a seizure order, the original and original collection order or assignment order, the delivery certificate of the above order, and the assignment order should be confirmed, and in the case of an assignment order, a correction order or non-acceptance order should be issued.

[2] The deposit officer has only the formal review right to examine whether the claim of the deposit party satisfies the procedural and substantive requirements stipulated in the relevant statutes, only with the written request for withdrawal or withdrawal of the deposited goods and the accompanying documents. However, even in cases where there are reasonable grounds to deem that the claim did not meet the prescribed requirements as a result of such review, the deposit officer shall not grant an approval of the

[1] Articles 19(3), 28(1), 46(2), 56, 57, and 273 of the Civil Execution Act; Article 123 of the Civil Procedure Act; Articles 32, 33, and 34 of the Deposit Rules / [2] Articles 32, 33, and 34 of the Deposit Rules

[2] Supreme Court Decision 2009Da82831 Decided February 25, 2010 (Gong2010Sang, 646)

Plaintiff (Attorney Sung-chul et al., Counsel for the plaintiff-appellant)

Korea

Suwon District Court Decision 2016Na59140 decided December 1, 2016

The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

The grounds of appeal are examined.

1. Security that a debtor under the executive title deposits to suspend compulsory execution against the executive title (hereinafter referred to as “judicial security deposit”) is aimed at securing damages and losses that may arise to the creditor due to the suspension of compulsory execution. Therefore, the basic claim itself based on the executive title subject to the suspension of compulsory execution is not secured.

Therefore, the deposit officer in receipt of a claim for withdrawal of the judicial security deposit from the person under deposit must first verify whether the person under deposit claims the deposit based on his/her right to claim payment of the deposit, or whether the person under deposit claims the order of seizure and collection of the deposit holder's right to claim payment of the deposit, or all of the final and conclusive orders for collection of the deposit claims. In the former case, it should be confirmed whether the final and conclusive judgment on the "liability for Damage Caused by Suspension of Compulsory Execution," which is the secured claim, has been submitted by the depositor, or whether the consent of the depositor has been submitted. In the latter case, it should be confirmed whether the person under the judicial security deposit has submitted the final and conclusive documents on the right to claim the deposit collection based on the secured claim, and in the case of an assignment order, the original and conclusive documents on the assignment order, the service and certification of the above order, and in the case of an assignment order, the payment of the deposit should be ordered or non-acceptance decision has to be made. This purport is provided for in the Rules on the Payment of Judicial Security Deposit (Administrative Procedure).

Meanwhile, the deposit officer has the right to conduct a formal examination to examine whether the claim by the deposit party satisfies the procedural and substantive requirements prescribed in the relevant statutes only with the written request for withdrawal or withdrawal of deposited goods and the accompanying documents. However, even in cases where there are reasonable grounds to deem the claim to have failed to meet the prescribed requirements as a result of such examination, the deposit officer shall not necessarily authorize the claim (see Supreme Court Decision 2009Da82831, Feb. 25, 2010).

2. The lower court acknowledged the following facts.

A. By receiving a payment order from the court that “the Plaintiff shall pay 83,093,286 won and its delay damages,” the payment order became final and conclusive.

B. The plaintiff filed a lawsuit of demurrer against the above payment order and applied for a temporary suspension of compulsory execution, and received a decision of suspension of compulsory execution with the purport that "the compulsory execution based on the original copy of the above payment order shall be suspended until the pronouncement of the judgment in the above case of objection" from the court on the condition that "the plaintiff deposits KRW 17,00,000."

C. The Plaintiff deposited KRW 17,000,000 with the deposit money in order to secure damages arising from the suspension of compulsory execution.

D. However, before the judgment on the above claim was rendered, Swiftships applied for the seizure and collection order concerning the Plaintiff’s claim for the above deposit collection based on the original copy of the above payment order, and issued the seizure and collection order, and the defect of the claim for deposit withdrawal based on the above seizure and collection order after the order was served to the Defendant, and the deposit officer paid the above deposit money.

3. Examining these facts in light of the legal principles as seen earlier, the Defendant is liable to compensate the Plaintiff for damages equivalent to the deposit amount due to the negligence of paying the deposit to the Plaintiff, as a state public official, on the ground that: (a) in such a case, the depository must either order the correction of the original copy, etc. of the seizure and collection order received for the Plaintiff’s right to claim the deposit based on the document proving that the “damage claim due to the suspension of compulsory execution”, which is the secured claim of the instant deposit, has occurred; and (b) in such a case, the depository should either order the correction of the seizure and collection order received for the Plaintiff’s right to claim the deposit payment based on the above damage claim or the above damage claim, which is the secured claim of the instant deposit; (c) in violation of its duty of care, the Defendant sustained damages equivalent to the Plaintiff’s deposit amount due to the negligence of paying the deposit without verifying the written request and attached documents

4. Nevertheless, the lower court determined that there was no negligence on the part of the deposit officer, thereby making a decision contrary to the opinion expressed in the Supreme Court precedents as seen earlier regarding the scope of examination and official duties of the deposit officer. Therefore, the lower court’s judgment has a ground for violating Article 3 subparag. 2 of the Trial of Small Claims Act, and the ground of appeal assigning this error

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below, and remand the case 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 Lee Ki-taik (Presiding Justice)