Applicant

Seoul Central District Court Order 2017Kadan54 dated November 21, 2017

The appeal of this case is dismissed.

1. Records recognized by the records or substantial facts in this court;

A. On May 3, 2016, the applicant filed a motion for confirmation of the amount of litigation costs against the Defendant 2 (hereinafter “depositor”) with the Seoul Central District Court Decision 2013Gahap1582, Seoul High Court Decision 2013Na71304, Supreme Court Decision 2015Da1673, and the Plaintiff’s successor, Nonparty 1, the Plaintiff filed a motion for confirmation of the amount of litigation costs against the Defendant 2 (hereinafter “depositor”) as the Seoul Central District Court Decision 2016KaMa233, Seoul Central District Court Decision 2016, “The amount of litigation costs to be reimbursed by the depositor to the applicant is KRW 25,22,768,” which became final and conclusive around that time.

B. On August 29, 2017, the depositor deposited KRW 25,222,768 with the deposited person as the applicant for the deposit (hereinafter “the deposit of this case”) as Seoul Central District Court No. 17910 on August 29, 2017, stating that “The deposited person actually provided the money to the applicant based on the decision to determine the amount of the above litigation costs, but refuses to accept it, and thus, deposited the deposited money.”

C. Meanwhile, the Seoul Central District Court 2017Kahap81409 (hereinafter “Seoul Central District Court”) filed an application for provisional disposition with respect to the applicant’s right to claim restitution of the instant deposit against the Republic of Korea. On September 5, 2017, the above court rendered a provisional attachment on the ground that “the right to claim restitution of the instant deposit shall be provisionally attached, and the Republic of Korea shall not pay the said claim to the applicant” (hereinafter “instant provisional attachment order”), and the said decision reached the deposit officer on September 6, 2017.

D. After that, based on the executory decision of the Seoul Central District Court 2016Kapo232 regarding the depositor, the applicant applied for a seizure and collection order against the depositor’s right to claim the withdrawal and collection of the instant deposit against the Republic of Korea, Seoul East East District Court 2017 Tapo-Tari58533, based on the executory decision of the Seoul Central District Court 2016Kapo-232, and received the seizure and collection order of the said court on October 31, 2017.

E. On November 6, 2017, the applicant filed a claim for the recovery of the instant deposit with the depository as the holder of the right to claim the collection of the deposit, which is the seized claim under the seizure and collection order.

F. On November 7, 2017, the deposit officer rendered a decision not to accept the applicant’s claim for recovery of deposited goods on November 6, 2017, on the ground that the provisional attachment decision of this case was already received and could not respond to the applicant’s claim for recovery.

G. On November 8, 2017, an applicant filed a written objection, and on November 21, 2017, the court of first instance rendered a final decision to dismiss the applicant’s objection.

2. Applicant's assertion

A. Since the deposit of this case is null and void because it does not meet the requirements of Article 487 of the Civil Act, the deposited person does not have the right to claim the payment of deposit against the deposited person, and only the depositor's right to claim the recovery exists.

B. The applicant exercises in subrogation the right to claim the recovery of the deposit of this case on the part of the depositor as the right to preserve the separate claim against the depositor. This does not constitute an act prohibited by the provisional attachment decision of this case. Thus, the decision of the first instance court is unfair and should have the deposit officer pay the deposit to the applicant.

3. Determination

(a) The effect of the deposit for repayment;

In the instant case, there is no evidence to prove that the depositor satisfied the requirements of “if the obligee fails to receive, or is unable to receive, reimbursement” under the former part of Article 487 of the Civil Act in depositing the instant deposit. However, even if the deposit does not meet the requirements as a repayment deposit, even in such a case, the deposit itself does not have the effect of extinguishing the obligation under Article 487 of the Civil Act, and does not have the right to claim the payment of the deposited amount. The applicant’s assertion on this part is without merit.

B. Whether to exercise the right to claim the reimbursement of deposit

The applicant also exercises the right to recover the deposit of this case against the depositor's right to claim the recovery of the deposit. Therefore, this paper examines whether the applicant can exercise the right to claim the recovery of the deposit.

According to Article 476(1) and (2) of the Civil Act, where an obligor bears several obligations for the same kind of obligation to the same obligee, and the offer of performance does not extinguish the entire obligation, the person performing the obligation may designate any of the obligations at that time and appropriate it for the repayment. If the person performing the obligation does not designate it as above, the person performing the obligation may designate any of the obligations at that time and appropriate it for the repayment, and if the person performing the obligation raises an objection immediately to such appropriation, this provision shall not apply.

In cases where the deposited person has several claims of the same kind against the deposited person and the deposited person has deposited some of his/her claims, the deposited person can only determine whether to pay the deposited amount, unless there is any special reason to the contrary, and thus, the deposited person can only receive the deposited amount only as the receipt of the payment to meet the claims designated in the cause of the deposit. However, in cases of receiving the deposited amount, it is reasonable to deem that the deposited amount can only receive the deposited amount as the receipt of the payment to meet the claims specified in the cause of the deposit.

In this case, the applicant exercises his right to collect the deposit of this case with the intent to appropriate the deposit of this case for a separate claim against the depositor, but this is not permitted as it infringes upon the right to designate the obligor for repayment protected under the Civil Act, unless the depositor gives his consent to the claim for recovery of the deposit of this case. There is no evidence to prove that the applicant consented to the exercise of the applicant's right to claim recovery of the deposit of this case. Thus, the applicant's claim for recovery of the deposit of this case cannot be accepted (if the applicant gives consent to the only date, it seems that the applicant's exercise of the right to claim recovery of the deposit of this case as the collection authority before the occurrence of the cause

Therefore, the decision of the first instance court is just in its conclusion, and there is no other evidence to deem the above decision illegal or unjust. The applicant's assertion is without merit.

4. Conclusion

Therefore, the appeal of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Jae-soo (Presiding Judge)