Where the amount of dividends has been deposited against claims of a provisional seizure creditor, the extent and time of extinguishment of claims of a provisional seizure creditor ordering payment in a final judgment, etc.

When a dividend court distributes dividends, it shall deposit the amount of dividends to the claims of the creditor of provisional seizure, and thereafter, when the grounds for deposit are extinguished as the judgment on the merits becomes final, the settlement or mediation in the lawsuit is concluded, or the decision in lieu of a recommendation for settlement or mediation becomes final and conclusive, etc., the dividend court shall pay the deposit money to the creditor of provisional seizure (see Articles 160(1)2 and 161(1) of the Civil Execution Act), barring special circumstances, the claims of the creditor of provisional seizure who ordered payment at a final and conclusive judgment, etc. on the merits, etc. on the merits, shall be extinguished to the extent that the

Articles 160(1)2 and 161(1) of the Civil Execution Act

Seoul High Court Decision 200Na11446 decided May 1, 200

Hanam Comprehensive Development Co., Ltd. (Law Firm Democratic, Attorneys Ha Man-man, Counsel for defendant-appellant)

Seoul High Court Decision 201Na73870 decided June 27, 2012

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 2

The interpretation of a juristic act is to determine the objective meaning which the parties have given to the act of expression. Although it is not an expression used in writing, the objective meaning given by the parties to the act of expression shall be reasonably interpreted according to the contents written in the document regardless of the parties’ internal intent. In the case where the objective meaning is not clearly expressed in the language indicated by the parties, it shall be reasonably interpreted in accordance with logical and empirical rules, general common sense and transaction norms so that it conforms to the ideology of social justice and equity, by comprehensively taking into account the contents of the text, the motive and background leading up to the juristic act, the purpose and genuine intent to be achieved by the juristic act, transaction practices, etc. In addition, such a legal principle shall be equally applied to the case where there is a dispute as to the interpretation of the adjustment clause after the parties to the lawsuit came into existence (see Supreme Court Decision 2004Da6065, May 27, 2005).

The court below affirmed the judgment of the court of first instance. The mediation clause of this case provides that "the plaintiff shall pay 7,00,000,000 won to the defendant until December 18, 2009, but if the payment is not made by the above payment date, the damages for delay calculated at 20% per annum from the day following the payment date to the day of full payment." The court below determined that the plaintiff's monetary payment obligation cannot be deemed as a concurrent performance relationship with the defendant's obligation of delivery of share certificates, by stipulating that the plaintiff's monetary payment obligation is due and the payment is not made within the above payment period, and it does not state that the defendant bears the obligation for delay on the condition that the defendant performed the obligation of delivery of share certificates or provided the performance." Paragraph (2) does not state that "the defendant delivers share certificates to the plaintiff with the payment of the above money." However, in light of the fact that the plaintiff's monetary payment obligation is specified in Paragraph (1).

In light of the above legal principles and records, the above determination by the court below is just, and there is no error of law by misapprehending the interpretation of the adjustment clause and the legal principles on simultaneous performance relationship.

2. Regarding ground of appeal No. 1

(1) When the distribution court makes a distribution, the claim of the creditor of provisional seizure shall be deposited with the amount of the distribution. If the cause of the deposit is extinguished as the judgment on the merits becomes final, the settlement or mediation in the lawsuit is concluded, or the decision in lieu of a recommendation for settlement or mediation becomes final and conclusive, etc., the distribution court shall pay the deposit money to the creditor of provisional seizure (see Articles 160(1)2 and 161(1) of the Civil Execution Act). Thus, barring special circumstances, it is reasonable to view that the claim of the creditor of provisional seizure who ordered a payment in the final and conclusive judgment, etc. on the merits, etc. on the merits ceases to exist to the extent that

(2) According to the reasoning of the judgment below, ① deposited KRW 8,00,000 as the guarantee for the cancellation of provisional disposition; ② the Defendant provisionally seized the Plaintiff’s right to claim the recovery of deposit money with the claim to the Plaintiff as a preserved bond; ③ the amount of KRW 7,166,147,536 for the Defendant who is the provisional attachment obligee upon the execution of a dividend of the instant deposit in the distribution procedure; ④ the Plaintiff’s payment of KRW 7,00,000 and KRW 360,000 calculated annually from December 19, 209 to December 15, 200; ④ the amount of KRW 360,000 for the Defendant as the provisional attachment obligee; and ④ the amount of KRW 7,00,000 and KRW 365,00 for the Defendant’s payment of KRW 20,000 to the Defendant; and ⑤ the amount of KRW 36,000,000 for the remaining distribution procedure, KRW 36360,75,70680,7.7.

Based on the above factual basis, the lower court determined that the Defendant, barring any special circumstances, was obligated to return the amount of KRW 676,153,973 ( KRW 7,676,153,973 - KRW 7,000,00) that the Defendant received in excess of the above dividend amount as above to the Plaintiff as unjust enrichment. In addition, the Defendant’s counterclaim, namely, the Defendant’s defense that the Defendant offsets damages incurred from delay against the Plaintiff against the amount equal to the Plaintiff’s claim for return of unjust enrichment, based on the automatic claim for damages incurred from delay, pursuant to the instant conciliation clause(1), the time when the repayment takes effect in the case of provisional seizure dividend deposit, on the ground that it is reasonable to view that the provisional attachment obligee who acquired executive title such as the final and conclusive judgment, received the above amount of dividends from the enforcement court, and that the Plaintiff was obligated to pay damages for delay calculated by the Defendant from December 19, 2009 to July 22, 2010.

(3) However, examining the above facts in light of the legal principles as seen earlier, barring any special circumstance, it is reasonable to view that the Defendant’s above claim extinguished all on the date of the completion of the conciliation as follows: (a) the Defendant’s claim was appropriated to KRW 7,000,000 for the same amount as the Defendant’s claim ordering payment under the above conciliation provision on December 15, 2009, which was the date of the completion of the conciliation; and (b) the Defendant’s claim was appropriated to KRW 7

Nevertheless, the court below calculated damages for delay to be paid by the plaintiff on the premise that the defendant's claim under the conciliation clause of this case is extinguished within the scope of appropriation of the amount of dividends when the defendant actually receives the amount of dividends. In so doing, the court below erred by misapprehending the legal principles as to the timing of extinguishment of claims due to the provisional attachment claims for the provisional attachment deposit

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of 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 Ko Young-han (Presiding Justice)