In cases where an attachment and assignment order is issued before an appeal is dismissed against a claim for recovery of deposit money of cash, etc. deposited as a guarantee while an appeal is filed against the decision of permission for the successful bid, the effect of such order on a claim for payment of deposit by a dividend creditor distributed from the court of auction.

According to Articles 642(4) and (6) of the Civil Procedure Act and Article 655(1)3 of the same Act, which apply mutatis mutandis to an auction procedure for exercising a security right to immovables pursuant to Article 728 of the same Act, the cash or securities deposited by a debtor or an owner of an object of auction as a security upon filing an appeal against a decision of permission of auction shall not be subject to a claim for recovery if such appeal has been dismissed, including the amount to be distributed, and the depositor shall not be entitled to a claim for recovery if the court distributes the deposit belonging to the distribution foundation to the distribution creditors, and the distribution creditors shall have the right to claim for recovery of the deposit. Thus, even if there was a seizure and assignment order for the right to claim recovery of the deposit before the dismissal of the appeal against the decision of permission of auction, it only results in the effect of transferring the claim for recovery to the execution creditors, and it may not affect the right to claim for payment of the deposit. Thus, the deposit public official who has received the request for payment of the deposit shall not refuse the claim for recovery of the deposit.

Article 642(4) and (6) of the Civil Procedure Act, and Article 655(1)3 (Article 728),

Korea Refrigerent Company

Chuncheon District Court Order 91Ma4 dated July 4, 1991

The order of the court below is reversed and the case is remanded to Chuncheon District Court Branch Branch.

The grounds of reappeal are examined.

According to the reasoning of the order of the court below, the court below held on October 16, 190 that the non-applicant Co., Ltd. deposited KRW 58,980,00 with the guarantee as the debtor or the owner of the auction subject matter against the decision of permission of auction on the auction of real estate rent in Chuncheon District Court's early branch on the same date. However, on March 7, 191, the non-applicant made a decision of seizure and assignment order on the claim of deposit of this case against the Republic of Korea by the above court on March 7, 191 and delivered the original copy to the Republic of Korea around that time. The auction price alone was insufficient in the above auction case and the deposit amount was calculated as the amount to be distributed, and entrusted to the re-appellant, the above auction court issued a payment consignment certificate to the above public official on May 10, 1991, and issued the deposit money to the above public official on the above court's deposit deposit account and assignment order of this case for the reason that the assignment order of this case becomes null and void.

However, according to Articles 642(4) and (6) and 655(1)3 of the Civil Procedure Act, which are applicable mutatis mutandis to an auction procedure to exercise a security right to real estate under Article 728 of the Civil Procedure Act. Cash or securities deposited by a debtor or an owner of an object of auction after filing an appeal against a decision of permission of auction are dismissed, the depositor, including the amount to be distributed, cannot exercise the right to recovery, and if the auction court distributes the deposit belonging to the distribution foundation to the distribution creditor, the distribution creditor shall have the right to claim the recovery of the deposit. Thus, even if there was an attachment and an assignment order regarding the right to claim the recovery of the deposit before the dismissal of the appeal against the decision of permission of auction, it would only cause the execution creditor to transfer the right to claim the recovery of the deposit and could not affect the right to claim the payment of the deposit. Thus, the deposit public official who has received the request for the withdrawal of the deposit can not refuse the request for payment of the deposit on the ground that the seizure and assignment order of the right to claim of the deposit.

Ultimately, the court below judged that the disposition of the non-acceptanced public official was justifiable on the ground that the attachment and assignment order for the right to claim the return of the auction deposit against the re-appellant's right to claim the return of the deposit was made. The court below committed an error of law affecting the decision of the court below as to the validity of the attachment and assignment order for the right to claim the return of the auction deposit, the validity of the right to claim the return of the auction deposit, and the scope of the review authority

Therefore, the order of the court below shall be reversed and remanded, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)