The meaning and criteria for the determination of "in cases of making a deposit by mistake" under Article 9 (2) 2 of the Deposit Act, and whether the amount of deposit constitutes "in cases of making a deposit by mistake" in cases where the amount of deposit is only a part of the amount of a piracy stipulated in the provisional seizure order even though the deposit was made to cancel the executed provisional seizure (affirmative)

Article 9 (2) 2 of the Deposit Act

Supreme Court Order 95Ma190 dated July 20, 1995 (Gong1995Ha, 2934)

Applicant

Suwon District Court Order 2013Ra761 dated May 22, 2013

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

The grounds of reappeal are examined.

1. The term "in cases of making a deposit by mistake" under Article 9 (2) 2 of the Deposit Act refers to cases where the deposit does not meet the necessary effective requirements. Whether the deposit requirements are met shall be objectively determined on the basis of the facts of the cause of deposit stated in the deposit certificate (see Supreme Court Order 95Ma190, Jul. 20, 1995). If the deposit was made to cancel the provisional seizure but the amount of the deposit was not all the amount of the harmful amount set forth in the provisional seizure order, but is merely a part of the amount of the deposit, the deposit constitutes "in cases of making a deposit by mistake" because it has no effect as a deposit for the cancellation of provisional seizure.

2. The record of this case reveals the following facts.

On May 25, 2012, the non-applicant filed an application for provisional attachment against the re-appellant with the claim for consolation money amounting to KRW 50 million against the re-appellant. On May 25, 2012, the aforementioned court rendered a provisional attachment order stating that "the re-appellant may deposit KRW 50 million and apply for suspension of execution or revocation of the provisional attachment order against the aforementioned court" under the aforementioned court No. 238, Feb. 1, 2013, the court deposited the deposit amount of KRW 30 million (hereinafter referred to as "the deposit of this case") with the aforementioned court's deposit money of KRW 30 million for the cancellation of provisional attachment order of real estate, and the above court deposited the deposit amount of KRW 20,000,000 (hereinafter referred to as "the provisional attachment order of this case"). The deposit amount of KRW 30,000,000,000 for the reasons that the deposit amount of this case could be mistaken to 31,201.

3. According to the above facts, the deposit money of this case deposited by the Re-Appellant for the cancellation of provisional seizure execution is not entirely the amount of the sea disaster prevention as determined by the decision of provisional seizure, but is not part of it. Thus, the deposit of the Re-Appellant is not sufficient to revoke the execution of provisional seizure. Therefore, the deposit of the Re-Appellant constitutes "the case where the deposit was made by mistake" because it

Nevertheless, the lower court determined that the re-appellant did not have any reason to claim the recovery of the instant deposit. In so doing, the lower court erred by misapprehending the legal doctrine on “where deposit was made by mistake” as provided by Article 9(2)2 of the Deposit Act, thereby adversely affecting the conclusion of the judgment.

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 Yong-deok (Presiding Justice)