주식회사 에쎈텍네트웍스

Korea

July 7, 2011

Seoul Southern District Court Decision 2010Da71275 Decided April 11, 2011

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff in both the first and second instances.

1. Purport of claim

Franho Development Co., Ltd. confirms that the claim for payment of deposit money of KRW 29,142,50 out of KRW 41,915,074 deposited by the Seoul Central District Court No. 14689 in 2010 was filed against the Plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Deposit;

The following facts can be acknowledged in light of the purport of the whole pleadings in Gap evidence No. 2.

A. On August 9, 2010, the Geumho Development Co., Ltd. (hereinafter “gold Development”) was liable to pay the deposited amount of USD 35,957,00 to the Plaintiff Company, the Eururel Co., Ltd. (hereinafter “Eurel”) or the de facto information system (hereinafter “actual information”), and deposited USD 35,957,00 on the ground of deposit. However, on the claim of the Eurur, each notice of assignment of claims to which the Plaintiff Company and the Eurine were the assignee of the information, the decision of provisional attachment of claims by the Credit Guarantee Fund (Seoul Central District Court Decision 2010Kadan65351) and the Dongjakho District Tax Office’s notification of seizure of claims cannot be known to the creditor on the ground that each notice of seizure of claims was served on August 9, 2010 and the amount of USD 35,957 was converted at the exchange rate, 91,074,074, Seoul Central District Court Decision 2010.

B. On December 10, 2010, the Plaintiff filed the instant lawsuit (Seoul Southern District Court 2010Da71275) seeking confirmation of the right to claim reimbursement of deposit money against the Defendant and the Codefendant of the first instance trial, and the Korea Credit Guarantee Fund. On December 10, 2010, the court rendered a ruling of recommending settlement with the purport that the Plaintiff Company’s right to claim payment of deposit money of KRW 29,142,50 out of the deposit money is confirmed to be in the Plaintiff Company. Accordingly, it did not object to the said decision of recommending settlement between the Plaintiff Company and the Bael, practical information, and the Korea Credit Guarantee Fund, and became final and conclusive by March 1, 2011 (only the Defendant was declared by objection, and the Defendant appealed and became subject to this case).

2. The plaintiff's assertion

The above deposit is a mixed deposit of repayment deposit and execution deposit. In this case, the plaintiff company's consent is required for other depositors to receive the above deposit, but it is difficult to expect their consent without permission, and the plaintiff company's right to claim payment of KRW 29,142,500 among the deposit money is sought to confirm that it is the plaintiff company.

3. Determination

Judgment ex officio is made.

The decision of recommending the settlement to the Korea Credit Guarantee Fund as another depositor also constitutes a document evidencing that the applicant has the right to claim for payment of deposit money (see Supreme Court Order 99Ma4239, Nov. 30, 1999). Since the Plaintiff Company may claim for payment of deposit money with the decision of recommending the settlement as above, it is possible for the Plaintiff Company to claim for payment of deposit money. Thus, seeking confirmation of the right to claim for payment of deposit against the Defendant who is not the deposited party against the third party (see Supreme Court Decision 2007Da35596, Oct. 23, 2008).

Therefore, the instant lawsuit is unlawful.

4. Conclusion

Therefore, the lawsuit of this case is dismissed in an unlawful manner, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked, and the plaintiff's lawsuit of this case shall be dismissed, and it is so decided as per Disposition.

Judge Lee Young-dong (Presiding Judge)