[1] Where a judgment becomes final and conclusive after execution of a preservative measure against an execution creditor in a lawsuit on the merits of the case, whether the execution creditor is presumed to have intention or negligence on the part of the execution creditor (affirmative in principle)

[2] In case where an overlapping possession relationship was established with respect to share certificates, the method of pledge by transfer of the right to claim the return of the highest indirect occupant, and the requisite for setting up the pledge

[3] The case holding that in a case where Gap corporation made a loan to Eul corporation and entered into a pledge contract on the shares issued by Byung corporation which will be acquired by Eul corporation, and the Korea Securities Depository for which the period of protection expires, deposited the above share certificates, and Gap corporation filed a prior lawsuit seeking delivery of share certificates against Jung corporation, and the court of first instance and the appellate court decided that Gap corporation acquired the pledge rights on the shares, but the court of appellate court applied for provisional disposition prohibiting the right to claim the return of deposited goods with different legal view and applied for provisional disposition, and the provisional disposition execution became final and conclusive as the court of appeal against Eul corporation, the presumption of intention or negligence suffered by Gap corporation cannot be deemed to be reversed due to the execution of an unfair provisional disposition

[1] Although preservative measures such as provisional attachment and provisional disposition are executed by the court's judgment, the existence of a substantive claim is entrusted to the lawsuit on the merits and is under the creditor's responsibility by vindication. Thus, if the execution creditor loses the lawsuit on the merits after the execution, it is presumed that the execution creditor was intentional or negligent for the damage incurred by the debtor due to the execution on the merits, unless there is any special counter-proof as to the damage incurred by the execution on the part of the debtor, and therefore, he is liable to compensate

[2] Article 338 of the Commercial Act provides that when a registered share is subject to a pledge, a share certificate shall be delivered to the pledgee (paragraph (1)), and the pledgee may not oppose a third party by means of a pledge unless he/she continues to possess the share certificates (paragraph (2)). Here, in cases where a transfer of possession of the share certificates, which are the requirement for the establishment of a pledge is permitted, in addition to the real delivery (delivery), a simple transfer of the right to request a return is also allowed, and in cases where the share certificates are kept in custody to a third party, a pledger who directly occupies the share certificates shall transfer the right to request a return to the pledgee against the third party who is the owner of the own possession, and in such cases, the consent of the third party or notification of the pledgee to the third party is given to the third party. Such a legal principle also applies to cases where the third party again takes possession of the share certificates to a third party, and thus, the highest indirect pledger is not required to transfer his/her right to request the return to the pledgee to the third party and give notice to the third party or consent to the third party.

[3] The case holding that in a case where Gap corporation's loans to Eul corporation, and Eul corporation's loans to Eul corporation, entered into a pledge contract, issued shares of Eul corporation's stocks, and obtained the name and seal of the representative director of Byung corporation, the Korea Securities Depository established a written request for approval of pledge, and the Securities Depository established a prior lawsuit seeking delivery of share certificates, and the court of first instance and the appellate court decided that Gap corporation acquired the pledge rights of Eul corporation's above shares, although Gap filed a prior lawsuit seeking delivery of share certificates against Jung corporation, the court of first instance and the appellate court did not have any legal opinion and sought confirmation that Eul corporation was not in the pledgee's status of the above shares, and then the lawsuit was finalized against Eul corporation's loss, it cannot be seen that Gap corporation's application for provisional disposition was reversed solely on the ground that the court of first instance and the appellate court did not accept Gap corporation's claim for provisional disposition since it did not have any explicit precedent regarding the method of right to claim the return of the highest indirect possessor's share certificates at the time of provisional disposition.

[1] Article 750 of the Civil Act, Articles 276 and 300 of the Civil Execution Act / [2] Article 338 of the Commercial Act, Articles 188, 190, 194, 349, and 450 (1) of the Civil Act / [3] Articles 190, 194, 349, 450 (1), and 750 of the Civil Act, Article 300 of the Civil Execution Act, Article 338 of the Commercial Act

[1] Supreme Court Decision 92Da8453 delivered on September 25, 1992 (Gong1992, 2990) / [2] Supreme Court Decision 99Da58471 delivered on September 8, 200 (Gong200Ha, 2081)

Han Savings Bank (Law Firm LLC, Attorneys Lee Gyeong-cheon et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 200Na1488 decided May 1, 200

Seoul High Court Decision 2011Na53289 decided March 29, 2012

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

Although preservative measures such as provisional attachment or provisional disposition are executed by the court's judgment, the issue of whether there exists a substantive claim shall be entrusted to the lawsuit on the merits and shall be borne by the creditor by the vindication. Thus, if the execution creditor after such execution has become final and conclusive to lose the lawsuit on the merits, it shall be presumed that the execution creditor has intention or negligence with respect to the damage incurred by the debtor due to the execution of such preservative measures, and therefore, he shall be liable to compensate for the damage caused by such improper execution (see Supreme Court Decision 92Da8453 delivered on September 25, 1992, etc.).

Meanwhile, Article 338 of the Commercial Act provides that when a registered share is to be pledged, the pledgee shall deliver the share certificates to the pledgee (paragraph (1)), and the pledgee shall not oppose a third party with the pledge unless he/she continues to possess the share certificates (paragraph (2)). Here, in cases where the possession of the share certificates, which are the requirements for the establishment of a pledge right, is permitted in addition to the real delivery (delivery). In cases where the share certificates are kept in custody for a third party, the pledgee, who has indirect possession of the share certificates, shall transfer the right to request the return to the third party, who has the own possession of the share certificates, to the pledgee, in order to transfer the possession of the share certificates through the transfer of the right to request the return to the third party, who has the right to request the return from the pledgee. In such cases, the above legal principle also applies to cases where the third party occupies the share certificates again by taking possession of the share certificates to the third party, and thus, the pledgee or the third party's consent to the third party is not sufficient.

According to the reasoning of the judgment below and the court below's ruling that the plaintiff was not entitled to the provisional disposition of this case on June 24, 202 by the court of appeal against the defendant's 1,360 shares listed in the separate list of 1,00 shares (hereinafter "the shares of this case") or the provisional disposition of this case on the ground that the plaintiff was not entitled to the provisional disposition of this case for the transfer of 00 shares and the provisional disposition of this case's 1,363 and 45 shares (hereinafter "the shares of this case") were not assigned to the defendant's 2. The court of appeal against the defendant's transfer of 00 shares and the provisional disposition of this case's 2. The court of appeal against the defendant's transfer of 00 shares and the provisional disposition of this case's 2. The court of appeal against the plaintiff's transfer of this case's share certificates were not entitled to the provisional disposition of this case's 1,400,000 shares.

In light of the above facts in light of the legal principles as seen earlier, although the defendant applied for provisional disposition in this case and received a decision of accepting it from the first instance court and the lower court in the absence of the Supreme Court's explicit decision as to the method of establishing pledge upon the transfer of the highest indirect possessor's right to request the return of the right to request the provisional disposition in this case, it is recognized that the defendant applied for provisional disposition in this case, but the first instance court and the appellate court rendered a decision of explicitly that the plaintiff acquired the right to pledge on the shares in this case with the same purport on two occasions in the first instance court and the appellate court of this case, the defendant applied for provisional disposition in this case by asserting that the judgment of the court on the above issues is nothing more than independent, and that the appellate court and the first instance court of this case and the appellate court of this case can be seen to have failed to present reasonable grounds to support the defendant's assertion as to the provisional disposition in this case to the extent that there were no reasonable grounds for the defendant's assertion, and the defendant did not consistently accept the above provisional disposition in this case's opinion.

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the requirements for establishment of a pledge and presumption of intention or negligence of the provisional disposition creditor who lost the lawsuit on the merits as otherwise alleged in the ground of appeal. In addition, the Supreme Court precedents pointed out in the ground of appeal are different from this case, and it is not appropriate

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min Il-young (Presiding Justice)