In cases where a provisional disposition creditor has deposited money as a security order to secure the damages to be caused by a provisional disposition and has been declared bankrupt, whether an obligor of provisional disposition may exercise his/her security right without resorting to bankruptcy proceedings regarding the right to claim for recovery of deposit funds (affirmative)

In case where a provisional disposition creditor has deposited a certain amount of money by an order to provide security by the court in order to secure the damages to be caused by a provisional disposition, the person liable for provisional disposition who is the person liable for security has the same right as the pledgee on the deposited money (Article 19(3) of the Civil Execution Act, Article 123 of the Civil Procedure Act)

On the other hand, if a provisional disposition creditor is declared bankrupt, the right to claim for recovery of the deposit money provided by the provisional disposition creditor belongs to the bankrupt estate. Therefore, if the provisional disposition debtor exercises his right as a pledgee with respect to the right to claim for recovery of deposit money, this right can be exercised without resorting to bankruptcy procedures.

However, in cases where a claim for damages by a provisional disposition obligor, which is a security deposit, falls under a bankruptcy claim under Article 423 of the Debtor Rehabilitation and Bankruptcy Act, prior to the declaration of bankruptcy against a provisional disposition obligee, who is the bankrupt debtor, and the claim for damages arising from a cause arising from the provisional disposition obligee, which is a security deposit, constitutes a bankruptcy claim under Article 423 of the Debtor Rehabilitation and Bankruptcy Act, such claim cannot be exercised without resorting to bankruptcy proceedings pursuant to Article 424 of the Debtor Rehabilitation and Bankruptcy Act. Moreover, even if a claim falling under a bankruptcy claim is a secured claim, the right to separation is only a right to preferentially and individually recover specific property that belongs to the bankruptcy estate, and does not have a right to receive reimbursement from time to time from time to time from time to time from the bankruptcy estate. Therefore, filing a performance lawsuit against the provisional disposition obligee regarding the above claim for damages that falls under a bankruptcy claim against the provisional disposition obligee cannot be deemed the exercise

Meanwhile, in such a case, a provisional disposition obligor shall secure the document proving that the secured claim has occurred by means of confirmation, such as filing a lawsuit seeking confirmation on the existence of a claim for damages, which is the secured claim of the secured claim of the secured claim, against the bankruptcy trustee by the provisional disposition obligee, and then receiving a judgment of confirmation, etc. pursuant to Article 354 of the Civil Act, the security right may be exercised by submitting the above document as a document proving the existence of a security right pursuant to Article 273 of the Civil Execution Act, which is stipulated in Article 354 of the Civil Act, by seizure of the right to claim for the recovery of the deposited claim by means of the execution of the pledge, and upon receiving a final order

Articles 19(3), 273, 286, and 301 of the Civil Execution Act; Article 123 of the Civil Procedure Act; Articles 382, 411, 412, 423, and 424 of the Debtor Rehabilitation and Bankruptcy Act; Article 354 of the Civil Act

Partnership Co., Ltd. (formerly Amended Partnership Group (Law Firm Law Firm Ground, Attorneys Oi-hwa et al., Counsel for the plaintiff-appellant)

Korea Deposit Insurance Corporation (Law Firm LLC, Attorneys Yellow-Gyeong et al., Counsel for the bankruptcy)

Seoul Central District Court Decision 2013Na43320 decided April 22, 2014

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. In case where a provisional disposition creditor has deposited a specified amount of money by an order to provide security by the court in order to secure a debtor for a provisional disposition due to a provisional disposition, the debtor for a provisional disposition who is a secured person shall have the same right as a pledgee for a security deposit (Article 19(3) of the Civil Execution Act, Article 123 of the Civil Procedure Act)

On the other hand, if a provisional disposition creditor is declared bankrupt, the right to claim for recovery of the deposit money provided by the provisional disposition creditor belongs to the bankrupt estate. Therefore, if the provisional disposition debtor exercises his right as a pledgee with respect to the right to claim for recovery of the deposit money, this right may be exercised and the security right may be exercised without resorting to bankruptcy procedures

However, in cases where a claim for damages by a provisional disposition obligor, which is a secured claim for security deposit, falls under a bankruptcy claim under Article 423 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Bankruptcy Act”), and thus, it cannot be exercised without resorting to bankruptcy proceedings pursuant to Article 424 of the Debtor Rehabilitation and Bankruptcy Act, inasmuch as such claim constitutes a bankruptcy claim under Article 423 of the same Act. Even if a claim falling under a bankruptcy claim is a secured claim, the right to separation is only a right to preferentially and individually recover specific property that belongs to the bankruptcy estate, and does not have a right to receive reimbursement from the bankruptcy estate at any time. Therefore, filing a performance lawsuit against the provisional disposition obligor against the bankruptcy trustee cannot be deemed as the exercise of the security right to specific property that belongs to the bankruptcy estate, and thus, it is not permitted because the provisional disposition obligor exercises a bankruptcy claim outside the bankruptcy procedure.

Meanwhile, in such a case, the provisional disposition obligor shall secure the document attesting that the secured claim has occurred by means of such methods as filing a lawsuit to confirm the existence of the right to claim damages, which is the secured claim of the secured claim of the secured claim, against the trustee in bankruptcy, and receiving a judgment of confirmation, etc., and shall, pursuant to Article 354 of the Civil Act, submit the above document to prove the existence of the secured claim, which is stipulated in Article 273 of the Civil Execution Act, and may enforce the security right by requiring a seizure of the right to claim the recovery of the deposited claim by means of the execution of the pledge, and a request for the withdrawal of the deposited money under the order of collection or a final and conclusive order. In addition,

2. According to the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted, the following facts are revealed.

A. On December 5, 2011, the Seoul Central District Court 201Kadan65588, issued a provisional disposition ordering the Plaintiff to prohibit the disposal of the instant apartment as the right to claim the cancellation of the registration of ownership transfer based on the obligee’s right to revoke with respect to the instant apartment, and issued a provisional disposition ordering the Plaintiff to prohibit the sale, donation, lease on a deposit basis, lease on a deposit basis, mortgage, right of lease, and all other disposal acts. The provisional disposition was registered on the same day (hereinafter “the provisional disposition”).

B. On January 5, 2012, the Plaintiff filed an objection against the instant provisional disposition order with the Seoul Central District Court Decision 2012Kadan10399, and on February 22, 2012, the said court rendered a decision to authorize the instant provisional disposition order on the condition that the Liber Savings Bank deposits cash worth KRW 70,000 as collateral, and around that time, the Liber Savings Bank deposited the Plaintiff as the deposited person and deposited KRW 70,000 (hereinafter “instant deposit”).

C. On September 7, 2012, the Rad Savings Bank was declared bankrupt by the Seoul Central District Court, and the Defendant was appointed as a trustee in bankruptcy on the same day.

D. Although the judgment of the first instance court on the claim for the revocation of the fraudulent act filed by the Franchi Savings Bank in relation to the instant provisional disposition was winning on July 26, 2012, the lawsuit was terminated due to the withdrawal of the lawsuit from the second instance to the first instance court that appealed against the Plaintiff on January 11, 2013, and the registration of the instant provisional disposition was revoked on February 14, 2013 due to the cancellation of the instant provisional disposition.

E. On February 6, 2013, the Plaintiff filed a lawsuit seeking compensation for damages against the Defendant on the ground that, without properly verifying the existence of the preserved right, the Plaintiff paid attorney’s fees in order to prevent the expansion of damage caused by the instant provisional disposition, and that the Plaintiff incurred losses due to the delay in lease during the lease period in which the instant provisional disposition registration was completed, and that the Defendant did not receive monthly rent.

3. We examine the above facts in light of the legal principles as seen earlier.

The Plaintiff’s right to claim damages due to the instant provisional disposition, which is the secured claim on the instant deposit money provided by the LF Savings Bank, constitutes a bankruptcy claim under Article 423 of the Debtor Rehabilitation Act, which is a property claim arising from the cause before the bankruptcy is declared against the LF Savings Bank.

Even if the plaintiff is the holder of the right to separate settlement who has the same right as the pledgee with respect to the right to claim the recovery of the deposit money of this case and can exercise the right to separate settlement by exercising the security right to claim the recovery of the deposit money, the plaintiff's filing a lawsuit claiming the performance of the right to claim the damages against the defendant as a bankruptcy

Therefore, the instant lawsuit seeking the performance of the claim for damages against the Defendant, which constitutes a bankruptcy claim, is unlawful as it does not go through bankruptcy proceedings.

4. Nevertheless, the lower court determined otherwise on the premise that the Plaintiff, as the holder of the right to separate settlement, could seek performance of the above right to claim compensation for bankruptcy claims against the Defendant.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the distinction between bankruptcy claims and the right to separation, the exercise of the right to separation, and the method of exercising the security right to judicial security deposits when the depositor is declared bankrupt. The ground of appeal pointing this out is with merit.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)