part of the cancellation of security where the claimed amount of the lawsuit filed by the holder of the right to the money deposited by the suspension of compulsory execution falls short of the total amount of the deposit;

In case where the claimed amount of a lawsuit filed by a person having the right to security against the money deposited as a guarantee for the suspension of compulsory execution falls short of the total amount of the deposit money, it shall not be deemed that the person having the right has exercised the right to the remaining portion except the claimed amount. Thus, a cancellation of security may be made by deeming that the consent has been obtained from

Articles 115 and 475 of the Civil Procedure Act

Supreme Court Order 92Ma728 dated October 20, 1992 (Gong1992, 326)

Gutaintains

Lee Lee Jae-sub

With respect to a case of suspending compulsory execution of 93Ka150 on March 8, 1993 between the above parties, the applicant’s security against KRW 55,00,000,000 out of the amount deposited as 70,000 in gold 1061 on March 8, 1993 as the guarantee by the applicant shall be revoked.

1. Review of the records reveals the following facts.

A. On February 24, 1993, the applicant filed an appeal against the judgment on the ownership transfer registration case between the applicant and the respondent, and the party member filed an application for the suspension of compulsory execution based on the above judgment, and the party member ordered the deposit of KRW 70,00,000 as a guarantee for the suspension of compulsory execution. The applicant deposited KRW 70,000 with the deposit officer of the Seoul Residential District Court as KRW 1061 on March 8, 1993 as the deposit of KRW 1061 on the same day, and the party member suspended compulsory execution based on the above judgment until the Supreme Court is declared on the same day.

B. After the Supreme Court decision was rendered on September 10, 1993 that dismissed the applicant’s appeal, the applicant filed a motion with a member of 93Ka755 on October 18, 1993 to demand the exercise of the right to the said deposit. On November 27, 1993, the respondent who received the demand for a party member’s exercise of right to the said deposit filed a lawsuit against the applicant for a damages claim against the applicant under Seoul Crown District Court 93Ka195642, and reported that on the same day to the party member.

However, according to the plaintiff's complaint, the respondent has suffered damages of KRW 25,838,089 with an annual interest rate of KRW 25,000,00,000 with an annual interest rate of KRW 168,60,913 with an annual interest rate of KRW 168,60,000 and interest rate of KRW 168,60,000 with an annual winning amount due to the petitioner's unfair compulsory execution suspension, and the respondent has claimed damages with an annual interest rate of KRW 10,000 and KRW 10,000 from October 5, 1993 to the filing date, and damages for delay with an annual interest rate of KRW 25,000 with an annual interest rate of KRW 168,60,913 with an annual interest rate.

2. On the other hand, when there is a request from a person who has the right to the security after the completion of the lawsuit, the court shall demand the person who has the right to the security to exercise his right within a given period upon the request of the person having the right to the security, and if the person having the right to the security does not exercise his right, the court shall consider that the person having the right to the security has consented to the cancellation of the security, and if the person having the right to the security does not exercise his right, the court shall consider that the person having the right to the security has exercised his right to the remainder other than the claim amount in case where the amount of the claim filed by the person having the right to the highest notice of the exercise of right is less than the total amount of the deposit of the security. Therefore, it is reasonable to deem that the person having the right to the security can cancel the security by deeming that the person

In this case, among the amounts of KRW 70,000,000 deposited by the applicant as a guarantee for the suspension of compulsory execution, the portion for which the other party who is the secured right holder exercised shall be the sum of KRW 10,000,100 and the delay damages therefor. Therefore, the sum shall not exceed KRW 15,000,000.

Therefore, regarding at least 55,00,000 won of the above deposit (70,000,000-15,000,000) as to the cancellation of security by failing to exercise the right within the prescribed period, it shall be deemed that the consent is given. Therefore, it shall be determined as per the order with the cancellation of security.

Judges Kang Jong-soo (Presiding Judge) (Presiding Judge)