[1] The degree of the duty of care in the custody of the person responsible for the seizure as well as in the case of the consignment and custody of the seized articles, the person who bears the cost of the consignment (=person responsible for seizure)

[2] The case holding that it is invalid for the third party to whom the State designates the person to be returned as the person to whom the expenses for entrusted management are to be borne by the third party when concluding the entrusted management contract with the custodian of the seized property

[1] The disposition of seizure is recognized within the scope necessary for criminal procedure and temporarily restricts the owner's property rights due to the State's forced power. Thus, when a private person keeps an article by the exercise of public authority, the person in charge of seizure shall keep the article as a good manager's duty of care, as well as in the case of entrusted custody. Where the owner's property rights are infringed upon by violating the duty of custody as a good manager, the person in charge of seizure shall compensate for damages, and where expenses are incurred in the custody of the seized article are not ordered to be kept to the owner, the person in charge of seizure shall bear the expenses in the case of the owner's own custody, and in the case of entrusted custody, the person in charge of seizure and the custodian shall bear the contractual obligation, such as payment

[2] The case holding that it is not effective for the third party to whom the State designates the person to be returned as the person to whom the expenses for entrusted management are to be borne by the third party when concluding the entrusted management contract with the custodian of the seized property

[1] Articles 130 and 131 of the Criminal Procedure Act, Article 693 of the Civil Act / [2] Articles 539 and 693 of the Civil Act

[1] Supreme Court Decision 97Da58507 delivered on January 21, 2000 (Gong2000Sang, 467)

[Defendant-Appellee] The Head of Si/Gun/Gu

Korea

Busan District Court Decision 9Da14801 delivered on March 15, 2000

Supreme Court Decision 2001Da23706 Delivered on July 10, 2001

1. Of the original judgment, the part against the plaintiff falling under the order to pay is revoked.

The defendant shall pay to the plaintiff 71,739,192 won with 5% interest per annum from August 13, 1999 to March 21, 2001, and 25% interest per annum from March 22, 2001 to the day of full payment.

2. All remaining appeals by the plaintiff and the defendant are dismissed.

3. Of the costs of lawsuit in the first and second instances, 1/5 of the costs of lawsuit shall be borne by the plaintiff and the remainder by the defendant respectively.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 165,00,000 won with 25% interest per annum from the day following the delivery of the copy of the complaint of this case to the day of full payment (the plaintiff filed a claim for the amount of the original claim for restitution, and the plaintiff additionally added the claim for restitution of unjust enrichment to the first preliminary claim, and the claim for damages due to the second preliminary tort).

2. Purport of appeal

The part against the plaintiff in the judgment of the court below is revoked. The defendant shall pay to the plaintiff 76,377,467 won with 5% interest per annum from August 13, 1999 to the rendering of the judgment of this case, and 25% interest per annum from the next day to the full payment day.

Defendant: The part against the Defendant in the lower judgment is revoked, and the Plaintiff’s claim corresponding to the revoked part is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or there is no conflict between Gap's evidence 1 to 5, Gap's evidence 6-1, 2, Gap's evidence 7 through 12, Gap's evidence 13-1 to 3, Gap's evidence 14-1, 2, Eul's evidence 3-1, 2, and 4-1, 3-2, and Eul's evidence 4 and witness's testimony, and there is no counter-proof.

A. Import of the instant vessel

(1)The plaintiff, who was engaged in the coastal cargo transport business in the name of the new company from 37-16, Young-dong, Young-dong, Mapo-dong, Mapo-dong, Mapo-si, on December 5, 1996, has obtained conditional authorization to modify the plan for the maritime cargo transport business with the content that the plaintiff will sell overseas the 91-dong, the Mapo-dong, the old vessel, which was supplied for his transport business from the Minister of Maritime Affairs and Fisheries on December 5, 1996, and instead, to secure one of the old vessels (77t Class) and one of them (6,310t class) which are used for the maritime transport from a foreign country for a commercial purpose.

(2) On December 30, 1996, the Plaintiff entered into a facility lease agreement with the non-party Korea Development Lease Co., Ltd. and the above tugboat on the joint and several guarantee of the non-party Japan Shipping Co., Ltd. for the importation of the above vessel.

(3) Nonparty 1, who is an employee of the Plaintiff taking charge of the above import duties, imported the Big Service (BIG PPPPPER) and Big Capital (BGCARRIER) No. 6,310t barge from Nonparty Cheongju Shipping Co., Ltd. (hereinafter referred to as "the instant vessels") from 3,000,000 US dollars and entered Busan port on February 1, 1997.

B. A seizure and consignment management contract for the instant vessels of the head of Busan Customs Office

(1)In the Busan Customs Office, Nonparty 1 reported the instant vessel as free of charge, and the head of Busan Customs Office detained Nonparty 1 as a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes on April 21, 1997, when the towing vessel and barge are different from the tariff classification and the items are different, and the said towing vessel is 5% of the customs duty rate. The said towing vessel, which is the above towing vessel, was manufactured in 1974 and it is impossible to import more than 20 years after being manufactured in 1974, and the date of manufacture in the name tag, which was about to be seen as possible, was about August 1982, and seized the instant vessel from the Plaintiff on April 21, 1997, under the Act on the Aggravated Punishment, etc. of Specific Crimes, which was committed on April 17, 199.

(2)The Head of Busan Metropolitan Government, on April 30, 1997, entered into an entrusted management contract for the vessels of this case with the non-party Grand Ship Co., Ltd. (hereinafter referred to as the "non-party Co., Ltd.") on the following terms:

(1) The contract period: From April 30, 1997 to the date the head of Busan Customs Office requests the cancellation of the contract.

(2) Scope of management: Subsequent measures, etc. to be taken when the relevant ship is preserved and distressed.

(3) Management expenses: 7,795,000 won per month, and the expenses inevitably incurred in the management of the ship, such as anchoring fees, shall be claimed for actual expenses.

(4) Methods of claiming management expenses: Where the ship is returned, all expenses incurred in managing the ship shall be claimed to the recipient of the refund.

(c) Trial process and return of seized articles;

(1) On July 22, 1997, the Busan District Court sentenced the non-party 1 to a conviction on the charge of violating the Customs Act (an attempted or attempted customs evasion), and sentenced the non-party 1 to the confiscation of the vessel of this case. However, on June 3, 1998, the Busan High Court, which was the appellate court, sentenced the non-party 1 not guilty on the part of the above attempted customs evasion as to the non-party 1's attempted customs evasion, and on the part of the above attempted customs evasion as to the non-party 1's attempted customs evasion, there is no evidence to prove that the plaintiff who imported the vessel of this case committed the crime of the non-party 1's attempted customs evasion, and reversed the first instance judgment of confiscation as to the vessel of this case on the ground that it cannot be confiscated from the non-party 1, not the owner or possessor. The judgment was finalized on June 11, 1998

(2) On July 1998, after the decision became final and conclusive, the plaintiff determined that the seizure of the above vessel was cancelled in accordance with Article 332 of the Criminal Procedure Act, and applied for the return of the seized article in custody to the head of Busan Customs Office. Accordingly, the prosecutor's house sent to the prosecutor's office in Busan was directed to return the above vessel.

On July 18, 1998, the head of Busan Customs Office cancelled the seizure of the vessel of this case according to the prosecutor's return direction, and notified the plaintiff to take over the vessel of this case by entering resident registration certificates and seals. The vessel of this case was entrusted to the non-party company during the period of seizure, and according to the entrusted management contract between the head of Busan Customs Office and the non-party company, the vessel management fee should be borne by the recipient.

(3) In this regard, the plaintiff asserted that the responsibility for the custody of the goods seized by the state power was against the State and requested by the head of Busan Customs Office, the person in charge of the custody of the above vessel, to take over the above vessels without paying the management expenses. The head of Busan Customs Office, based on the plaintiff's assertion, sought the opinion of the head of the Busan District Prosecutors' Office and the head of the Korea Customs Service as to whether the above vessels will be responsible for the management expenses for the above vessels. Accordingly, the opinion of the head of the Busan District Prosecutors' Office stated that "the criminal procedure is completed by implementing a ruling of removal of lawful seizure measures, and therefore, it is reasonable to deal with the above goods in the civil legal relationship between the customs office, the entrusted management company, and the person to be returned." The opinion of the Commissioner of the Korea Customs Service was that "the management of

(4) On November 9, 1998, the Head of Busan Customs Office notified the Plaintiff of the reply of the Commissioner of the Korea Customs Service. The Plaintiff determined that if the Plaintiff demanded the payment of management expenses against the State, the burden of the management expenses due to the delivery body of the said vessel increases, the Nonparty Company exercised the right of retention on the said vessel with the claims for the management expenses, and that the said vessel could not be delivered without the actual management expenses. On November 27, 1998 between the Nonparty Company and the non-party Company from April 30, 1997 to November 24, 1998, the amount of KRW 165,00,000 out of the entrusted management expenses for the said vessel from November 24, 1998 and the amount of KRW 187,606,260 out of the total management expenses for the said vessel.

(5)In accordance with the above agreement, the plaintiff paid or delivered to the non-party company 105,00,000 won in cash on the date of the above agreement, and one promissory note with a face value of KRW 30,000,000 on December 12, 1998, with a face value of KRW 30,000 on January 24, 199, with a face value of KRW 30,000,000 on a face value of KRW 30,000 on a face value, and each of the said promissory notes was settled on that date.

2. The parties' assertion

The plaintiff asserts that the defendant should pay the above money to the plaintiff because the plaintiff paid management expenses of 165,00,000,000 to the non-party company in subrogation of the defendant in lieu of the defendant, since the plaintiff has the responsibility to keep the seized articles in custody. Since the defendant's custody of the seized articles anticipated to be confiscated is not a legal obligation, it is possible for the state to return the confiscated articles to the owner in a criminal trial, it should be deemed that the defendant's custody of the seized articles to a third party is a legal relation corresponding to the management of affairs of the owner. Thus, the defendant's custody of the seized articles to a third party should be deemed as the management of affairs related to the management of affairs.

3. Persons to bear expenses incurred in keeping seized articles;

(a) Responsibility to keep seized articles;

Seizure is a compulsory disposition by a judge's warrant, which is a preservation measure for the execution of confiscation and presenting it as evidence in a criminal trial in the process of collecting evidence of a crime, and is a compulsory disposition by an investigative agency to exclude the possession from the owner, etc. of the object, and it is a compulsory acquisition by an investigative agency or its continuation.

Therefore, the person in charge of seizure shall be the investigative agency under the jurisdiction of the defendant, and the relevant investigative agency, etc. shall take appropriate measures to prevent the loss, damage, etc. of the seized articles as a seizure agency (see Articles 219 and 131 of the Criminal Procedure Act). For this purpose, the office building of the seizure agency shall have a storage place on its behalf, or a storage place equipped with corrective, fire prevention facilities, etc. to prevent the loss, damage, or change of seized articles.

As above, in principle, the seized articles shall be kept under the custody of the government office, but it is difficult to transport them to the government office of the seized agency or it is difficult to keep them in the government office of the seized agency even if they are possible, in cases where the custody itself is dangerous or difficult, and in preparation for such a case, it is an exception to the custody of the government office, which is the principle of the custody of the seized articles, and Articles 219 and 130 of the Criminal Procedure Act provide, “The seized articles which are difficult to transport or keep may be kept under the custody of the government office of the seized articles, or may be kept under the consent

Such disposition of seizure is recognized within the scope necessary for criminal procedure and temporarily restricts the owner’s property rights due to the State’s forced power. As such, when a private person keeps a private person’s property through the exercise of public authority, the person in charge of seizure shall preserve the property with the duty of due care as a good manager, as well as in the case of a trust custody. If the owner’s property rights are infringed due to the violation of the duty of custody

(b) Bearing expenses for safekeeping seized articles;

Where expenses are incurred in the custody of seized articles, a person in charge of seizure shall bear the expenses incurred in the custody of such articles in the case of an entrusted custody, and a person in charge of seizure shall perform contractual obligations, such as the payment of storage fees, as a bailor, if a deposit contract is concluded between the person in charge of seizure and the custodian.

Therefore, the defendant's assertion that the defendant is in a position equivalent to a manager of another person's business without any duty, and that the expenses should be borne by the plaintiff, the owner of the ship of this case.

4. Acquisition and scope of the right to indemnity;

(a) Acquisition of the right to indemnity;

As seen earlier, the head of Busan Customs Office, who was an affiliated organization of the defendant, did not directly keep the above ship and entrusted the above to the non-party company with the custody of the above ship at the office building for the purpose of fulfilling his duty of care as to the seized goods. Thus, the head of Busan Customs Office did not pay the expenses incurred therefrom to the non-party company even though the defendant was responsible for the expenses incurred therefrom, so long as the non-party company could not receive the above ship without paying the entrusted management expenses by exercising the right of retention as to the above ship on behalf of the non-party company, as long as the non-party company was discharged to the non-party company by exercising the right of retention as to the above ship on behalf of the non-party company, which is the creditor due to the above payment.

In regard to this, the defendant, as the method of claiming management expenses under Article 6 (2) of the entrusted management contract between the head of Busan customs office and the non-party company, provides that "All expenses incurred in vessel management shall be claimed to the person entitled to refund if the above ship is returned." Thus, the plaintiff's assertion that as long as the plaintiff paid the above management expenses to the non-party company in accordance with the above agreement, it cannot obtain the right to indemnity against the defendant due to the repayment of its debt. However, the agreement that only the above third party bears the above obligation is invalid as against the third party, unless otherwise provided by law. The defendant bears the contractual obligation according to the original validity of the above deposited contract

(b) Scope of the right of indemnity;

(1) From April 30, 1997, the Plaintiff agreed to deliver the instant vessel from the non-party company to November 24, 1998, the commission management cost for the said vessel was KRW 187,606,260, and the Plaintiff agreed to pay KRW 165,000,000 out of the above consignment management cost between the non-party company and the non-party company on November 24, 1998, as seen earlier. Thus, the Defendant’s payment to the Plaintiff is KRW 165,00,000,000, which is to be paid to the non-party company, barring special circumstances.

(2) Restriction on exercise of the right of indemnity

Since the custody of seized articles is for the maintenance and preservation of the seized articles according to their nature and nature at the time of seizure, the defendant, who is the person in charge of custody of seized articles, is sufficient to preserve and manage them within the scope of the duty of due care as a good manager. As such, expenses exceeding the above scope of preservation and management, such as partial repair of the machinery of a ship, etc., exceeds the appropriate amount of custody as the owner of the seized articles, which should be borne by the owner who is exempted from disbursement. In full view of the above purport of the argument in the first instance court's inquiry about Gap evidence Nos. 13-2 and the first instance court's fact-finding with 16,649,40, 200 won as the repair cost of the ship of this case during the custody of the ship of this case, the non-party company shall be excluded from the scope of the above-mentioned repair cost, and thus, it shall be excluded from the scope of the plaintiff's compensation for damages exceeding the above amount of 382,409 won.

(3) Defendant’s assertion regarding the restriction on the exercise of the right of indemnity

(A) First, the defendant alleged that while receiving the notice of return from the defendant to the non-party company for a considerable period of time without immediately receiving the notification of return from the non-party company, the increased expenses incurred therefrom are attributable to the plaintiff. However, although the plaintiff did not receive the refund of the ship of this case while receiving the notification of refund from the defendant, the non-party company refused to exercise the right of retention by asserting that the defendant had the responsibility to pay the management expenses under the above entrusted management contract, and the non-party company did not pay the management expenses to the plaintiff. Thus, unless the plaintiff intentionally or negligently did not delay the procedure of return, the contract period of the entrusted management contract of this case between the defendant and the non-party company was from April 30, 1997 to the date of requesting the termination of the head of Busan customs office, the above entrusted management contract of this case was terminated by the agreement between the plaintiff and the non-party company, and there is no evidence to prove that the above entrusted management contract was terminated by the head of Busan customs office before November 24, 1998.

(B) Next, the defendant argued that the expenses for the storage of the vessel as seized articles are limited to those for the maintenance of the value of evidence, cleaning of the vessel necessary for the preservation of confiscation of the vessel, and those for the maintenance of the minimum functions of the vessel facilities, such as theft of equipment for the vessel. Thus, in the case of the vessel of this case, the expenses for the repair of the vessel of this case shall not be for the maintenance of the value of evidence and for the maintenance of the cost of oil, vessel supplies, vessel supplies, vessel supplies, vessel supplies, and the cost for the alteration of the storage place, but it shall not be for the maintenance of the value of evidence and for the maintenance of the confiscation of the vessel of this case. However, according to the above facts, the defendant's liability for the storage of the seized articles is not limited to the above scope of the defendant's assertion, but to the extent necessary for the performance of the above duty of care as well as for the removal of the vessel of this case's 13-1, 2-4 and the charges for the repair of the vessel of this case's mooring.

5. Conclusion

Therefore, the defendant, from 165,00,00 won paid by the plaintiff to the non-party company at the entrusted management expenses of the ship of this case, 38,492,40 won for power generation expenses of 126,507,60 won limited to 126,768,40 won and 54,768,408 won which the judgment below ordered payment from the court below after the date of occurrence of the above claim for reimbursement, is reasonable to dispute as to the existence or scope of the defendant's duty of payment from August 13, 199 to 15, 200, which is the date of the decision of the court below, 5% per annum under the Civil Act, and 25% per annum from March 16, 200 to the day of full payment, 71,739,192 won for the above part of the plaintiff's claim for payment from the court below to 200% per annum 25,000 per annum of the above decision.

Judges Lee Jae-young (Presiding Judge)