(영문) 서울고등법원 2007. 4. 19. 선고 2005나74865 판결

2. The part against Defendant 5 Co., Ltd. in the judgment of the first instance shall be revoked, and the plaintiff's lawsuit falling under the above part shall be dismissed.

3. The plaintiff's appeal against the defendant Korea Securities Depository or defendant 2 corporation is dismissed.

4. The costs of appeal between the Plaintiff, Defendant Korea Securities Depository, and Defendant 2 and the costs of appeal between the Plaintiff and Defendant 5 are all borne by the Plaintiff.

Purport of claim and appeal

1. Purport of claim

The primary claim: The Korea Securities Depository shall deliver to Defendant 2 Co., Ltd., and Defendant 2 Co., Ltd. shall deliver to the Plaintiff the share certificates listed in the attached Form 1>

Preliminary claim: Defendant 2 and Defendant 3 Co., Ltd., Defendant 4, Defendant 5, Defendant 6 Co., Ltd., Defendant 7, Defendant 8, 9, 10, 11, and 12 confirm that the deposited right holder of the share certificates listed in the [Attachment 1] List deposited by the Seoul District Court on June 24, 2003 as Seoul District Court No. 2003 No. 105 is Defendant 2. Defendant 2 expressed that the deposited right of the share certificates listed in the [Attachment 1] List is transferred to the Plaintiff, and notified the transfer to the Republic of Korea (the deposit officer of the Seoul Central District Court).

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff as to the plaintiff's primary claim against the defendant Securities Depository and the defendant 2 corporation shall be revoked, and the defendant Securities Depository shall deliver to the defendant 2 corporation, and the defendant 2 corporation shall deliver to the plaintiff the share certificates listed in attached Form 1>

Defendant 5 Co., Ltd.: The part against Defendant 5 Co., Ltd. in the judgment of the first instance is revoked, and the corresponding plaintiff's claim is dismissed.

Reasons

1. Scope of the trial of this court and whether the application for intervention is legitimate;

(a) Scope of the court's adjudication

In order to preserve the right to claim the return of the share certificates of this case against Defendant 2 corporation by asserting that the plaintiff is the pledgee of the shares of this case as seen below, the Korea Securities Depository requested Defendant 2 corporation to return the share certificates of this case to Defendant 2 corporation, Defendant 2 corporation to the plaintiff, and Defendant 2 corporation to the plaintiff, on the premise that the deposit of the Korea Securities Depository is null and void, and on the premise that the deposit of the Korea Securities Depository was effective, the claim for the return of the deposit certificates of this case against the other conjunctive defendants except Defendant 2 corporation was confirmed to be against Defendant 2 corporation, and the transfer and notification of the right to claim the return of the deposit certificates of this case to the defendant 2 corporation to the defendant 2 corporation. Such form of lawsuit is a case where the claim against part of the co-litigants is incompatible with that against other co-litigants, and it constitutes a preliminary co-litigation by the defendant pursuant to

The court of first instance dismissed the plaintiff's claim against the primary defendants, and declared a judgment citing all of the claims against the primary defendants. The plaintiff filed an appeal against the primary defendants who lost the court of first instance, and only the defendant 5 corporation filed an appeal against the part against which the plaintiff lost. As such, if the plaintiff filed an appeal against the primary defendants, the judgment against the primary defendants in relation with the primary defendants is not final and conclusive, and the judgment against the other primary defendants which need to be united with the primary defendants is transferred to the court and they are subject to adjudication. However, such preliminary defendants are in the position of "party to the appellate trial" without filing an appeal.

B. Whether the application for intervention is lawful

Defendant 5 Company filed an objection against Defendant 3 Company on the ground that it has an interest in accordance with the outcome of the instant lawsuit. As such, the Plaintiff is a necessary co-litigants, and thus, the Plaintiff cannot be deemed as continuing a lawsuit between others, and it cannot be deemed as having a legal interest in the litigation relationship, and as such, it may cause a significant delay in the litigation procedure after three years have already elapsed from the date of filing the lawsuit, the Plaintiff filed an objection against the aforementioned intervention by asserting that the foregoing motion for intervention should not be dismissed.

Therefore, during the lawsuit between the plaintiff and defendant 3, a third party who has an interest in the result of the lawsuit refers to a form of lawsuit in which he participates in the lawsuit in order to protect his own interest after winning one of the parties to the lawsuit. As seen above, the lawsuit of this case is a preliminary co-litigation pursuant to Article 70 (1) of the Civil Procedure Act, so it cannot be deemed that assistance by the conjunctive defendant 5 corporation to the other party of the lawsuit is pending and thus it cannot be permitted. However, assistance by the plaintiff to the defendant 3 corporation, one of several conjunctive co-litigants, such as himself, shall be the same as participating in the lawsuit between the other party. As examined below, it shall be deemed that assistance by the plaintiff and the defendant 3 corporation shall be the same as participating in the lawsuit between the other party. Accordingly, according to the result of the lawsuit as to whether the pledge has become effective with the opposing power against the third party, the defendant 5 corporation, the provisional attachment right holder of the right to request the intervention shall have a legal interest. Thus, the plaintiff's participation in the lawsuit shall not be justified.

2. Basic facts

The following facts are as follows: Gap evidence 1, 2, Eul evidence 3-1, 2, 3-1 through 4, Eul evidence 5, 6-1 through 3, Eul evidence 7-1, Eul evidence 11, Eul evidence 2-1, 2, Eul evidence 3, Eul evidence 4-1, 6-1 through 11, Eul evidence 5, Eul evidence 2-1, Eul evidence 2-2, Eul evidence 2-1, 2-4, Eul evidence 2-1, 5-2, Eul evidence 3-1, 5-2, Eul evidence 4-1, 5-2, Eul evidence 3-1, 5-2, Eul evidence 2-1, 3-1, 5-2, Eul evidence 2-1, 3-1, 5-1, 5-2, 5-2-1, 2-2, 3-1, 5-2, 2-4, 5-1, 2-2, 2-

A. Status, etc. of the parties

(1) The Plaintiff is a financial institution established for the purpose of credit fraternity business, credit installment savings business, and receipt of deposits and installment savings as stipulated in Article 11(1) of the Mutual Savings Banks Act.

(2) The Korea Securities Depository (hereinafter “Korea Securities Depository”) is a corporation established under the Securities and Exchange Act, which is engaged in the centralized deposit of securities, transfer between accounts, transfer of securities between accounts, transfer of securities transfer agent, and transfer and receipt of securities.

(3) As a stock-listed corporation on February 200, Defendant 2 obtained the approval of composition from the court around August 200, when the so-called bankruptcy occurred and around February 2000. As seen below, Defendant 3 Co., Ltd. acquired new stocks of Defendant 2 Co., Ltd. by a third party allotment method on June 4, 2002, and paid the full amount of composition debt around August 2002.

(4) On February 22, 2002, Defendant 3 was a specialized restructuring company established by Nonparty 1, etc. for the purpose of investing in and acquiring corporate restructuring companies. Nonparty 1, along with Nonparty 2 and 3, was a de facto manager who established Defendant 3 corporation in order to make profits from stock price by manipulating the stock price with Defendant 2, and Nonparty 2 was a representative director at the time of incorporation of Defendant 3 corporation. Nonparty 3 was a person who was appointed as the latter representative director of Nonparty 2 on July 2, 2002 (the registration of change of representative is made on July 4, 2002). The registration of Defendant 3 corporation was revoked by voluntarily paying the registration certificate of the specialized restructuring company on October 31, 202.

(5) Defendant 4, Defendant 6, and Defendant 7 are securities companies established for the purpose of conducting securities business under Article 2(8) of the Securities and Exchange Act, including sales and purchase of securities, brokerage or agency for the sale and purchase of securities.

(6) Defendant 5 Co., Ltd is a corporation established for the purpose of credit fraternity business, credit installment savings business, and receipt of deposits and installment savings under Article 11(1) of the Mutual Savings Banks Act.

B. Particulars of the issuance and safekeeping of the shares of this case

(1) From October 201, Nonparty 4, a specialized restructuring company, continued to perform debt settlement work with Defendant 2’s debt group to acquire Defendant 2, a composition company, from around October 2001. Nonparty 1, from November 2001, agreed on debt settlement and acquisition work with Nonparty 4 and Defendant 2, and decided to establish Defendant 3 and take over the management right of Defendant 2, as described in the above A.

(2) Around April 2002, Defendant 2: (a) around 170,00 shares already issued are to be reduced to approximately 3.7 million shares; (b) on April 19, 2002, the board of directors issued new shares of about 4,545,45, and 455 shares in registered ordinary shares (in the face value of KRW 5,000 per share, KRW 5,500 per share) and allocated them to Defendant 3; (c) on May 25, 2002, the board of directors decided to allocate new shares to Nonparty 3; (d) 4,445,455 shares out of the new shares issued as above; and (e) on June 3, 2002, the board of directors decided to allocate new shares to Nonparty 5 shares as the expected date of issuance of new shares on June 3, 2002; and (e) on March 26, 2002, listed shares as the expected date of issuance of new shares.

(3) On June 3, 2002, Defendant 3 was the shareholder of Defendant 2 by acquiring rights to 4,445,455 shares of Defendant 2 on June 4, 2002 after paying the subscription price for new shares. However, as the Securities and Exchange Act and the Enforcement Decree of the same Act apply to the issuance of new shares, Defendant 3 and Defendant 2 did not offer new shares for less than 1,445 shares out of 4,455 shares to be distributed as above pursuant to Article 12 of the Regulations on the Issuance and Public Notice of Securities and Exchange, which are subject to the issuance of new shares, for 1,363,45 shares among 1,910,00 shares, which are subject to the issuance of new shares, and thus, they did not offer new shares for less than 5,00 shares from the date of issuance to the Financial Supervisory Commission. Article 8 of the Securities and Exchange Act provides that the issuance of new shares is not subject to the issuance of new shares by the public offering of new shares.

(4) Accordingly, Defendant 2 entered into an agreement with the Korea Securities Depository on June 24, 200 and issued the share certificates of new shares allocated to Defendant 3, etc. on the basis of the above resolution for capital increase by issuing new shares (hereinafter “instant shares”) and (1),363,455 shares including the shares listed in the attached Table 1> (hereinafter “instant share certificates”). The remaining 3,455 share certificates shall be 1,00 share certificates, 3,100 share certificates, 40 share certificates, 50 share certificates, 20 share certificates, and 20 share certificates, and 30 share certificates and 5 share certificates were returned to the Korea Securities Depository (hereinafter “instant share certificates”) from July 26, 200 to 20 share certificates, 13,634,50 share certificates, and 20 share certificates were returned to the Korea Securities Depository for 200 share certificates and 30 share certificates, respectively.

(1) On May 28, 2002, the Plaintiff entered into a credit transaction agreement with Defendant 3 Co., Ltd. on the credit limit amounting to KRW 3.4 billion, the credit period expiration date May 28, 2003, the interest rate of KRW 15.6% per annum, and the delay interest rate of KRW 2.5% per annum, and loaned KRW 3.4 billion to Defendant 3 Co., Ltd. (hereinafter “instant loan”).

(2) At the time of the instant loan, the Plaintiff acquired 1,360,000 shares of Defendant 2 Co., Ltd. issued by Defendant 3 as collateral (acquisition of collateral after a prior loan) from Defendant 3 Co., Ltd., on the date of the instant loan, the Plaintiff entered into a pledge contract (hereinafter “instant pledge contract”) with Defendant 2 Co., Ltd. on the following grounds: (a) as of the date of the instant loan, Defendant 3 Co., Ltd.: (b) the discount of bills or notes, security loan, deed loan, mutual credit transaction, credit transaction, credit installment transaction, and other credit transaction; (c) obligations due to guarantee, payment obligations on bills or checks, interest obligations on bills or checks, compensation for damages, expenses to be borne by the obligor or lender; and (d) other incidental obligations related to credit transaction, such as shares issued by Defendant 3 Co., Ltd. to be taken over by the Defendant 1,360,000 shares issued by Defendant 2 Co., Ltd.

(3) According to the instant pledge contract, if the obligor has omitted even a part of the obligation, or if there is a shortage of security due to a change in the appraised value of the secured share, the Plaintiff is agreed to dispose of the secured security without due process only by the method, time, price, etc. as generally deemed reasonable and without due notice, and appropriate the balance obtained from the acquisition amount for repayment of the obligation, or to acquire the secured security in lieu of the repayment of all or part of the obligation by the method of notification to the lender, price, etc. (Article 6 of the relevant pledge contract).

(4) When the share certificates of this case were issued on June 24, 2002 and the share certificates of this case were deposited in the defendant Securities Depository on the same day, the plaintiff and defendant 3 corporation prepared a written request for approval of the right of pledge (Evidence A3-1) under the joint name of the representative director of the plaintiff and defendant 3 corporation, and received the name and seal of the representative director of the defendant 2 corporation on the written request for approval of the right of pledge around July 2002.

(5) The request for consent of the above pledge made on July (Date) 2002 shall contain the following information:

① The separate negotiable Securities is owned by Defendant 3 Stock Company, and the owner was not paid to Defendant 3 Stock Company pursuant to the agreement on the limitation of deposit and return, and was deposited in the Korea Securities Depository at the request of Defendant 2 Stock Company. The shares can be withdrawn only by Defendant 2 Stock Company since June 24, 2003, and it is confirmed that there was no transfer or pledge on other matters until July 8, 2002, and that there was no transfer or pledge on other matters, and the principal time is the date upon the joint signature of the pledgee (creditor) and the debtor and the pledgee’s credit and debt relationship;

(2) Where a debtor delays the performance of his/her obligation or is in an impossible condition due to the arrival of the time limit for repayment of the obligation under security or the loss of the time limit due, a request for change of his/her name from the pledgee to a third party or for change of his/her name, etc. is made after the consent of the pledger and the debtor is given consent to respond to such request without the consent of the pledger and the debtor.

3. The above-mentioned securities shall not have been assigned or pledged to another person, and shall have accepted the above-mentioned pledge, and shall be returned upon the expiration of the period of safekeeping to the pledgee or pledgee.

(4) The Plaintiff treated the written request for consent of the above pledge (No. 3-3 of the evidence No. 3-1 of the evidence No. 3-3 of the same document as a local photographic photographic picture), a pledge agreement (Evidence No. 2 of the same document), and a management ledger for each protective honorable beneficiary (Evidence No. 3-2 of the evidence No. 3-2 of the same document) of the first protective beneficiary’s shares 1,363,455 shares in the above binding order as all documents connected in accordance with the above binding order, and the notary public obtained a fixed date under Article 3835 of the Deputy Law Office No. 3835 of July 10, 202 (the above three documents are signed by the Plaintiff’s manager’s official seal, the official seal of the representative director of the defendant 3-2 corporation, the official seal of the representative director of the defendant 2-3 corporation

(5) On June 18, 2003, the Plaintiff requested Defendant 2 to return the share certificates of this case to the Plaintiff, the pledgee, at the expiration of the period of safekeeping of the shares of this case. However, Defendant 2, despite the expiration of the period of safekeeping of the share certificates of Type 1 safekeeping, sent an answer to the effect that the Plaintiff’s pledge cannot be acknowledged (Evidence 9) without requesting the return of the share certificates to the Korea Securities Depository (Evidence 9).

(d)The details of provisional attachment, provisional disposition and deposit;

(1) On February 15, 2002, Nonparty 1, along with Nonparty 2, 3, and 6 (a person who assumed office as the representative director of Defendant 2’s company upon acquiring the management right of Defendant 2’s company), offered to obtain large profits from stock prices by disposing of the stocks held by Defendant 2 by making illegal stock price manipulation work with respect to the stocks of Defendant 2, and selling them after making a stock price manipulation. Nonparty 1 and 2, Nonparty 3, and 7, etc., the role of securing and supplying funds necessary for stock purchase, securities account, and quantity of stocks, etc., Nonparty 6 shared the role of providing Nonparty 1 and 2 with information related to Defendant 2, etc., from February 15, 2002 to October 9, 2002; Nonparty 1 and 2 disposed of the stock price increase by entering into an agreement with Nonparty 1 and 25, etc., and disposed of the stock price increase in 15, etc.

(2) ① Defendant 4, Defendant 6, and Defendant 7 were to preserve the claim for damages against Defendant 3 corporation with respect to the market price manipulation of Defendant 3 corporation. ② Defendant 5 was to preserve the claim for loans against Defendant 3 corporation; ③ to preserve the claim for the refund of shares paid from Defendant 3 corporation with the intention to acquire the shares of Defendant 2 from Defendant 3 corporation; ② to preserve the claim for the refund of shares payment from Defendant 3 corporation, the attached Form 2: (a) Before October 18, 2002 to February 11, 203, the attached Table 2: (b) between Defendant 3 and Defendant 3,634,50 shares of common shares of Defendant 2 corporation deposited with the Korea Securities Depository (as seen in the above, the number of shares held at par value with Defendant 1) and each of the aforesaid provisional attachment order against Defendant 3 and the provisional attachment order against Defendant 2, each of the above Defendant 31 and Defendant 2, respectively; and (c) from Defendant 2, the attached Table 301 to Defendant Securities Depository.

(3) Meanwhile, on November 21, 2002, the Seoul District Court 2002Kahap3380 on November 21, 2002, rendered a provisional disposition order prohibiting the disposal of “600,000 shares out of the 1 protective securities shares,” which were “the creditors Nonparty 8, 9, and Defendant 3 Co., Ltd.,” and the decision was served on Defendant 3 Co., Ltd., the debtor at that time.

(4) On March 28, 2003, Seoul District Court 2003Gahap23781, Defendant 2 and Defendant 3 were the actual managers of Defendant 3, Nonparty 1, the representative director of Defendant 3, Nonparty 3, and Nonparty 6, the representative director of Defendant 2, who are the representative director of Defendant 3, filed a lawsuit claiming compensation for damages due to the illegal acts such as price manipulation, etc. On the other hand, in order to compensate for damages against Defendant 3, the Korea Securities Depository filed a lawsuit claiming delivery of the share certificates by exercising the right to claim the return of the first-protected shares held against Defendant 3 to the Korea Securities Depository (after that, the Korea Securities Depository deposited the first-protected shares as set forth below, the said share certificates were withdrawn).

(5) However, despite the expiration of the period of the period of the provisional seizure on June 23, 2003, the Korea Securities Depository deposited the stock certificates of No. 1-protected shares (hereinafter referred to as "the deposit in this case"), as above, the provisional seizure on No. 2) listed in the attached Table No. 1 of the attached Table No. 2 of the Korea Securities Depository. Moreover, on June 24, 2003, the Defendant 4 filed a lawsuit for the delivery of stock certificates against the Defendant Securities Depository, as Seoul District Court No. 2003No. 105, the deposited person was “Defendant 2 or Defendant 3 corporation, or Defendant 4 corporation,” Article 487 of the Civil Act, “Article 487 of the Civil Act,” “the provisional seizure order of Defendant 4 corporation, and the fact of the deposit in this case due to the filing of a lawsuit for delivery of stock certificates,” Article 184(2) of the Civil Execution Act, respectively, and Article 187(4) of the Civil Execution Act, respectively.

3. Whether the acquisition of pledge rights to the shares of this case is effective;

(a) The acquisition of pledge rights and the occurrence of opposing power;

(1) First, we examine whether the Plaintiff has effectively acquired the share pledge with the third party opposing power as to the shares of this case.

Article 338(1) of the Commercial Act provides, “When a registered share is the object of a pledge, the share certificate shall be delivered to the pledgee,” and Article 338(2) provides, “If the pledgee does not continue to possess the share certificate, the pledgee shall not oppose against the third party by the pledge.” The method of acquiring the possession of the share certificate, which is the requirement necessary for the establishment of a pledge of the shares, not only "actual delivery of possession" but also "simplified delivery" or "transfer of the claim for refund" shall be permitted. In the event that the share certificate is deposited or preserved with a third party, the pledgee who is the indirect possession of the share certificate, who transfers the right to request the return to the third party in order to transfer the possession of the share certificate necessary for the establishment of the pledge of the shares, shall transfer the right to the third party to the

On May 28, 2002, when the plaintiff extended 3.4 billion won to defendant 3 corporation on May 28, 2002, the plaintiff entered into a contract to establish a pledge right of this case with defendant 2 corporation on shares issued by the defendant 3 corporation to be acquired at the end (5,000 won per share) to secure the principal and interest of loans. The defendant 3 corporation paid the subscription price for new shares on June 3, 2002 and acquired the right to new shares 4,45,45 shares on June 4, 200 and then issued shares on June 24, 2002, the plaintiff and the defendant 3 corporation shall return the pledge right of this case to the representative director of the Korea Securities Depository, including the shares of this case, which was 1,360,00 shares issued by the defendant 3 corporation on June 24, 200, which included a written request for the establishment of pledge right of this case to the pledgee 20, which included a written request for the establishment of pledge right of this case.

In light of the facts as seen above, at the time of the instant pledge agreement, Defendant 2’s new shares were already determined at the time of the instant pledge agreement, and the Plaintiff was determined at the volume and par value of the shares to be acquired as the pledged article, so the said pledge agreement is valid as a contract under the condition that Defendant 3 corporation would acquire new shares of Defendant 2 corporation.

In addition, as seen earlier, Defendant 3 Co., Ltd., the owner of deposited shares of Defendant 1 and deposited shares issued to Defendant 2, and Defendant 2 Co., Ltd., agreed to accept the shares of this case including the shares of this case at the time of establishing a pledge against the Plaintiff, and pursuant to the relevant provisions, Defendant 2 Co., Ltd. entered into a deposit agreement with the Korea Securities Depository to protect the shares of this case and entered into a deposit agreement on the shares issued between Defendant 2 Co., Ltd and the Korea Securities Depository in relation to the shares of this case (as seen below, the legal nature of the deposit agreement is a kind of deposit agreement in that the Korea Securities Depository shall return the same securities separately stored by the client of deposited shares or the person responsible for protecting the deposited shares). Ultimately, Defendant 3 Co., Ltd. shall be deemed to transfer the right to claim the return of the share certificates of this case to Defendant 3 Co., Ltd. to the Plaintiff, the pledgee, pursuant to the contract to claim the return of the share certificates of this case.

Therefore, Defendant 3 corporation should be deemed to have the right to claim the return of share certificates under the aforementioned implied deposit contract against Defendant 2 corporation. However, as long as it is reasonable to deem that the Plaintiff and Defendant 3 agreed to transfer the above right to claim the return of share certificates to the Plaintiff, and that the Plaintiff obtained the transfer of the right to claim the return of share certificates from Defendant 2 corporation with the fixed date, the Plaintiff is deemed to have effectively acquired the right to claim the transfer of the right to claim the return of share certificates of this case at that time. (The Plaintiff asserted that, if the above consent was returned from the Korea Securities Depository due to the expiration of the period of protection deposit at the future, the Plaintiff was merely the Plaintiff’s consent to have the right to claim the return of share certificates from the Korea Securities Depository, but the above assertion cannot be accepted, as long as the purport that Defendant 2 corporation consented to the right to claim the return of

Article 22(1) of the Civil Act provides that the Plaintiff shall have the right to claim the return of the share certificates and the right to claim the return of the share certificates from the date of obtaining the fixed date on July 10, 2002, which was after the issuance of the share certificates of this case and the right to claim the return of the share certificates and the right to claim the transfer of the share certificates of this case from the date of obtaining the fixed date on the written request for approval of the right to claim the return of the right to claim the return of the share certificates and the right to claim the transfer of the share certificates of this case. Furthermore, as long as the Plaintiff continued to possess the share certificates of this case under an implied deposit agreement between Defendant 3 and Defendant 2 and the Korea Securities Depository under the deposit contract between Defendant 2 and Defendant 2, the Plaintiff shall be deemed to have the right to claim the return of the share certificates of this case, and the Plaintiff shall be deemed to have the right to claim the return of the share certificates of this case against Defendant 2, as the pledgee of the share of this

B. Determination as to the defendants' assertion

(1) On July 2, 2002, the representative director of Defendant 3 Co., Ltd. was changed from Nonparty 2 to Nonparty 3, and the representative director was registered on July 4, 2002, and there was no proof that notification of transfer of the right to claim the return of share certificates of this case was made before July 2, 2002 by Defendant 3 Co., Ltd. on the written request for consent of the right to claim the return of share certificates of this case, and if the written request for consent of the right to claim the return of share was made between July 8, 2002 and July 10, 202, the Plaintiff asserted that the Plaintiff could not acquire the right to claim the return of share certificates of this case.

As seen earlier, the Plaintiff and Defendant 3’s contract to establish the pledge right of this case was concluded on May 28, 2002. Defendant 3 Company paid the purchase price of new shares on June 3, 2002 and acquired the right of 4,455 shares on June 4, 2002. Defendant 2 Company was able to protect 1,363,455 shares out of the new shares issued on June 24, 200 and allocated to Defendant 3 Company for one year at the Korea Securities Depository. The Plaintiff and Defendant 3 Co., Ltd. were 200 and 200, a written request for the return of the pledge right of this case was signed on July 7, 2002 under the joint name of the Plaintiff and the representative director of Defendant 3 Co., Ltd., Ltd., which was 20 and 300, the transfer price of the right to request the return of the new shares was 30,000 shares.

In addition, even if there was an agreement on the transfer of the right to claim the return of share certificates after July 2, 2002, this is based on the intention of Nonparty 1, who is the actual manager of Defendant 3 Co., Ltd., and regardless of the title of the written request for the return of share certificates, it seems that the above assertion by Defendant 3 Co., Ltd is consistent with the intention of Nonparty 3, who was the representative director on the register

(2) ㈎ 피고 5 주식회사 겸 피고 3 주식회사 보조참가인은 이에 대하여, 이 사건 질권설정계약 당시 이 사건 주식은 실제 주식이 발행되어 있지도 않았고 그 질권설정자인 피고 3 주식회사는 주식인수인에 불과하고 담보증권목록의 명세도 첨부되지 않는 등 질권의 목적물이 현존하거나 특정되지 아니한 이상 원고는 이 사건 주권에 관한 유효한 질권을 취득하지 못하였다고 주장하나, 이 사건 근질권설정계약 당시 이미 피고 3 주식회사에 대한 피고 2 주식회사의 신주 배정이 확정되어 있었고, 원고가 질권의 목적물로 취득하게 될 주식의 수량 및 액면가도 확정되어 있었던 사실 및 실제로 이 사건 보호예수가 이루어진 다음 질권의 목적물의 명세가 근질권설정계약서의 일부로 첨부되어 특정된 사실은 앞서 인정한 바와 같으므로 위 피고 및 피고 보조참가인의 위 주장은 이유 없다.

㈏ 피고 5 주식회사 겸 피고 3 주식회사 보조참가인은 또한, 원고는 이 사건 주권에 대한 점유를 취득한 바 없고, 만약 피고 3 주식회사가 주권반환청구권을 원고에게 양도하는 방법으로 원고가 주권의 점유를 취득하기 위해서는 그 주권의 직접점유자인 피고 증권예탁결제원에 대하여 양도통지를 하거나 승낙을 받아야 할 것인데 위 직접점유자에 대한 통지 또는 승낙이 없는 이상 원고는 이 사건 주권에 관한 유효한 질권을 취득하지 못하였다고 주장한다.

Therefore, as seen earlier, in establishing a pledge right, the delivery of possession by the "transfer of the right to request the return" as to possession of the share certificates is permitted, and in case where the owner and the pledger (hereinafter only referred to as the "holder") hold the share certificates indirectly, they should transfer the right to request the return to the pledgee and meet the requirements for setting up the assignment of the nominative claim. If the pledger is the first indirect possessor against the direct possessor, it is clear that the pledgee should transfer the right to request the return to the direct possessor who is the one who owns the right to request the transfer of the nominative and notify the direct possessor of the fact of the transfer. However, in addition, if the indirect possession occurred demographicly, the possessor of the pledge right does not own the right, and the pledger does not have a contractual relationship with the direct possessor as the highest possessor, and the pledgee cannot be seen as having received the notification of the transfer from the holder of the right to request the return from the defendant 2 as the owner of the right to request the transfer of the pledge right, and it cannot be seen as valid or valid in the case of the above direct possessor.

㈐ 피고 2 주식회사, 피고 3 주식회사, 피고 5 주식회사, 피고 8, 9, 11, 12 및 피고 3 주식회사 보조참가인은, 의무보호예수 규정은 보호예수기간 동안 모든 처분권 행사를 제한함으로써 일반투자자를 보호하기 위한 강행규정인바, 원고와 피고 3 주식회사가 이 사건 주식에 대한 질권을 설정한 행위는 위와 같은 보호예수의 취지를 잠탈하기 위한 반사회질서의 법률행위에 해당하여 무효라고 주장하므로 살피건대, 증권거래법 및 동 시행령, 유가증권발행신고등에관한규정 등의 관련 규정에 의하여 피고 증권예탁결제원에 보호예수된 이 사건 주식 그 자체나 그에 대한 보호예수증서의 처분이 제한되어 있는 것은 분명하나, 위와 같은 규정들은 법률 자체에 근거를 둔 것이 아닐 뿐 아니라 위 규정에 위반한 주식양도행위 자체가 그 사법상 효력까지도 부인하지 아니하면 안 될 정도로 현저히 반사회성·반도덕성을 지닌 것이라거나 그 행위의 사법상 효력을 부인하여야만 비로소 그 규정의 목적을 달성할 수 있다고도 볼 수 없어 단속규정에 불과하다고 할 것이어서, 이 사건 주식양도계약이 그에 위반되었다 하더라도 그 효력이 무효로 되는 것은 아니라고 할 것이므로, 위 주장도 받아들일 수 없다.

㈑ 피고 2 주식회사, 피고 3 주식회사, 피고 8, 9, 11, 12는 원고가 피고 3 주식회사에게 대출한 금원은 피고 2 주식회사의 주가조작을 위한 자금으로 사용되었으므로 이는 불법원인급여에 해당하고, 따라서 불법원인급여에 해당하는 이 사건 대출원리금 채권을 담보하기 위하여 이 사건 주식에 대하여 한 질권 설정은 무효라고 주장하나, 원고가 이 사건 대출금이 피고 2 주식회사의 주가조작을 위한 자금으로 사용되리라는 사정을 알고 대출금을 교부하였다는 주장사실을 인정할 만한 아무런 증거가 없으므로, 위 피고들의 이 부분 주장은 나머지 점에 관하여 더 나아가 살펴 볼 필요 없이 이유 없다.

In addition, the above Defendants asserted that as long as multiple provisional seizures and provisional dispositions by creditors of Defendant 3 were made with respect to the share certificates of this case as shown in the attached Form 3 List, the Plaintiff could not exercise the right of disposal of the shares of this case. However, the creditors of Defendant 3 were unable to acquire the right of pledge. However, during the period from November 1, 2002 to June 23, 2003, the provisional seizure order which was issued by Defendant 3 was issued to Defendant 2, "the debtor 3, the third debtor 2, the above provisional seizure order was delivered to Defendant 3, the debtor 3, and the provisional seizure order was issued to the above third debtor 2,00,000,000,000 of the provisional seizure order that was issued to Defendant 3, the debtor 2,000,000,0000 won prior to the issuance of the provisional seizure order to preserve the right of disposal of the shares of this case as 30,000,000 won.

4. Judgment as to the main claim

A. Determination on the main safety defense of Defendant Securities Depository

Based on the premise that the Plaintiff is a pledgee of the instant shares, the Korea Securities Depository, on behalf of Defendant 2 Co., Ltd., in order to preserve the claim for the refund of the instant share certificates, primarily on behalf of Defendant 2 Co., Ltd., on the premise that the deposit by Defendant 2 Co., Ltd. is null and void, and Defendant 2 Co., Ltd., on the lawsuit of this case seeking the return of the instant share certificates to the Plaintiff, the Korea Securities Depository alleged that the primary claim should be dismissed as an unlawful lawsuit, since there is no preserved claim, or Defendant 2 Co., Ltd., a debtor, exercised the right to claim the return of the

(1) The Defendant Securities Depository first asserted to the effect that the Plaintiff did not acquire possession of the share certificates of this case, and that the pledge right against the 1-protected shares of this case was not effective due to the absence of consent to the pledge right, etc. Accordingly, the Plaintiff did not have a preserved claim against Defendant 2, the debtor, and therefore, the Plaintiff’s primary claim based on the obligee’s subrogation right is unlawful. However, as seen earlier, the Plaintiff continued possession of the share certificates of this case under the implied deposit contract between Defendant 3 and Defendant 2 and the deposit contract between Defendant 2 and the Defendant Securities Depository, and the deposit contract between Defendant 1 and the Defendant 2 pursuant to the first-protected deposit contract between the Defendant 1 and the Defendant Securities Depository. After the issuance and protection of the share certificates of this case, the Plaintiff obtained the fixed date on July 10, 202, which was the date of issuance and protection of the share certificates of this case, and had no opposing power against the third party on the transfer of the above share certificates of this case and the pledge right of this case. Thus, the Plaintiff did not have any other grounds for the defense against the Defendant Securities Depository.

(2) Next, Defendant Securities Depository asserts that the lawsuit on the main claim part of this case, which the Plaintiff seeks by subrogation of Defendant 2 Company, is unlawful, since it had already exercised the right to claim the return of the share certificates by asking the employee of Defendant 2 Company immediately before the expiration of the period of the deposit and deposit, but the aforementioned assertion alone is difficult to view that Defendant 2 Company exercised the right to claim the return of the share certificates of this case even though it is in a state where it can exercise the right to claim the return of the share certificates of this case, and there is no other evidence to acknowledge it, and thus, the above main

B. Judgment on the merits

(1) Summary of the primary cause of the instant claim

㈎ 피고 증권예탁결제원은 이 사건 제1보호예수약정에 따라 그 보호예수기간이 만료됨에 따라 제1보호예수주식의 주권을 피고 2 주식회사에게 반환하여야 하는데, 앞서 본 바와 같이 별지〈2〉 목록 기재 각 가압류와 피고 4 주식회사가 피고 증권예탁결제원을 상대로 주권인도소송을 제기하였음을 이유로 피공탁자를 ‘ 피고 2 주식회사 또는 피고 3 주식회사 또는 피고 4 주식회사’로 지정하여 채무자 상대적 불확지 공탁을 하였다.

㈏ 그러나 이 사건 공탁은 다음과 같은 이유로 착오에 의한 공탁에 해당되므로 무효이므로, 피고 증권예탁결제원은 이 사건 제1보호예수약정에 따른 보호예수기간 만료에 따라 피고 2 주식회사에게 이 사건 주권을 반환할 의무가 있고, 피고 2 주식회사는 이 사건 주식의 질권자인 원고에게 이 사건 주권을 반환할 의무가 있다.

[The portion designated by Defendant 3 Co., Ltd or provisional seizure creditor as the deposited person]

(1) As a contract of deposit, even if a third party claims the ownership of the deposited property and demands the return thereof, the deposit of this case made by Defendant 3 Company as the principal deposit on the ground that it is the owner of the shares of this case is unlawful.

(2) In addition, the decision of provisional seizure that caused the deposit of this case was made by designating the Korea Securities Depository as the garnishee and designating the Korea Securities Depository as the third debtor, but the shares of this case as the shares protected, cannot be subject to provisional seizure of shares in the deposited securities, and therefore there is no seized claim itself, which is the object of provisional seizure.

③ Even if the above provisional attachment order was interpreted as a provisional attachment against the right to claim the return of the shares protected by the above provisional attachment, Defendant 3 Co., Ltd., on the premise that the shares of this case will be protected, shall acquire new shares of this case and have Defendant 2 Co., Ltd. accept the stock certificates of this case to the Korea Securities Depository. This is because, even after the expiration of the period of protection, expressed that Defendant 2 Co., Ltd will exercise the right to claim the return of the stock certificates of this case only through Defendant 2 Co., Ltd., the right to claim the return of the stock certificates against the Korea Securities Depository shall be deemed only Defendant 2 Co., Ltd., who is the party to the instant provisional attachment agreement, and Defendant 3 Co., Ltd., the owner of this case, has no right to claim the return of stock certificates against the Korea Securities Depository. Thus, there is no provisional attachment against the

④ In the event that a claim is provisionally seized, the Defendant Securities Depository designated the provisional seizure creditor as the principal deposit and deposited the relative uncertainty on the ground of Article 487 of the Civil Act’s “if the creditor is unable to obtain reimbursement”. However, the Defendant Securities Depository deposited the provisional seizure creditor as the principal deposit.

⑤ Since the Korea Securities Depository was aware of, or could have known, such legal principles, it did not constitute a case where the creditor cannot be known without the fault of the debtor.

[The part which designated Defendant 4 Co., Ltd. as the deposited person]

The content of the share transfer lawsuit filed against Defendant 4 Korea Securities Depository is that Defendant 4 Company exercise the right to claim the return of share certificates against Defendant 3 Securities Depository in order to preserve the claim for damages against Defendant 3 Company. As seen above, Defendant 3 Company did not have the right to claim the return of share certificates against Defendant 3 Securities Depository. As such, Defendant 4 Company’s deposit of this case designated by Defendant 4 Company as the unentitled person, as the principal deposit, is null and void as the deposit by mistake.

(2) Determination of party members

㈎ 먼저, 피고 증권예탁결제원이 피고 2 주식회사 또는 피고 3 주식회사 또는 피고 4 주식회사를 피공탁자로 지정하여 상대적 채무자 불확지 공탁을 한 점과 관련하여 피고 3 주식회사의 피고 증권예탁결제원에 대한 주권반환청구권이 인정되는지 여부에 관하여 보건대, 을가 제10호증, 을가 제11호증의 각 기재에 변론 전체의 취지를 종합하면 일반적으로 증권예탁결제원이 유가증권을 예탁받을 경우 혼합보관한 후 예탁자의 반환청구시 동종·동량의 유가증권을 반환하지만 보호예수의뢰를 받을 경우 보호예수의뢰인 또는 보호예수의무자로부터 유가증권을 인도받아 이를 보호예수의뢰인 또는 보호예수의무자 별로 분리보관한 후 계약기간 만료시 동일한 유가증권을 반환하게 되어 있는 사실, 실무상 피고 증권예탁결제원은 내부 업무규정인 유가증권보호예수업무규정에 따라 의무보호예수의 경우 보호예수유가증권의 접수를 받으면 보호예수의무자에게 보호예수증서를 교부하고, 보호예수의무자는 당해 보호예수증서에 보호예수계약 당시 신고했던 인감과 동일한 인감을 날인하여 직접 보호예수유가증권의 반환을 청구하도록 하여 보호예수의무자에게만 보호예수유가증권을 반환하도록 업무를 처리하고 있는 사실이 인정되기는 하나, 앞서 살펴본 바와 같이 계속보유의무자(보호예수 유가증권의 소유자)와 보호예수의무자 사이에 임치계약이 성립하고, 보호예수의무자와 피고 증권예탁결제원 사이에 임치계약의 일종인 보호예수약정이 성립한다고 보아야 한다는 점, 의무보호예수는 일반적인 임치관계와 달리 임치인인 보호예수의뢰인이 임치물에 대하여 아무런 법적 권리 또는 이해관계를 가지지 않으면서 의무보호예수 제도의 실효성을 위해서만 증권예탁원과 직접 계약을 체결할 지위에 있다는 점, 또한 그 실질은 주주를 대신해서 보호예수계약을 체결하고 있는 것에 불과한 것이라는 점, 특히 보호예수의뢰인이 반환청구를 부당하게 거절하고 있거나 보호예수의뢰인이 반환청구를 할 수 없는 사정이 있는 경우에는 실제 주주임을 증명하고 자신의 소유권에 기한 주권반환청구권을 행사할 수 있도록 할 필요성도 있다는 점 등을 종합해 보면 보호예수 주식의 실제 소유자는 피고 증권예탁결제원에 자신의 소유권에 기한 주권반환청구권을 행사할 수 있을 뿐 아니라 보호예수의무자의 피고 증권예탁결제원에 대한 보호예수약정에 기한 주권반환청구권을 대위행사하는 것도 허용되어야 할 것이다.

Therefore, the instant repayment deposit made by Defendant Securities Depository as the principal of a deposit on the ground that it could not be confirmed who is either the “Defendant 2 Stock Company” or the “Defendant 3 Stock Company” or the “Defendant 4 Stock Company” acting in subrogation of the right to claim the return of share certificates against Defendant 3 Securities Depository, the holder of the instant shares, as the principal of the deposit, could not be confirmed.

㈏ 한편 피고 증권예탁결제원은 ‘ 피고 2 주식회사 또는 피고 3 주식회사 또는 피고 4 주식회사’를 피공탁자로 지정한 상대적 채무자 불확지 공탁을 하였을 뿐만 아니라, 피고 3 주식회사를 채무자로, 피고 증권예탁결제원을 제3채무자로 하여 별지〈2〉 목록 기재 가압류가 경합되었음을 이유로 민법 제487조 를 근거로 이 사건 공탁을 하였고, 이후 그 적용법령에 민사집행법 제248조 제1항 을 추가하는 내용으로 공탁정정신청이 수리된 사실은 앞서 인정한 바와 같다.

However, the execution deposit pursuant to Article 248(1) of the Civil Execution Act is limited to “a seized monetary claim” and the execution deposit cannot be effective with respect to the right to claim the return of this case, which is a kind of the right to request the delivery of corporeal movables, which is not a monetary claim. Thus, the said deposit cannot be deemed to have the effect of the execution deposit solely on the sole ground that the relevant applicable statute was added and the written deposit was corrected.

However, Article 248 of the Civil Execution Act provides that a provisional attachment against a monetary claim may be made by a third party obligor for an execution deposit. However, even in the case of provisional attachment against a claim for return of share certificates such as this case that is not subject to the above provision, if the provisional attachment against a third party obligor is made, the provisional attachment of the claim is only prohibited from paying to the third party obligor, and it does not allow the third party obligor to be exempted from the obligation itself, and if the due date of the claim becomes due even if the provisional attachment was made, the third party obligor shall not be exempted from the liability for delay. The third party obligor shall not be exempted from the liability for delay if the obligee can receive the repayment formally, such as the case where the provisional attachment is made against the third party obligor, even if the obligee still takes the risk of double repayment, the deposit of this case shall be deemed to fall under the "where the obligee is unable to receive the repayment" under Article 487 of the Civil Act. Thus, as long as the payment deposit under Article 487 of the Civil Act is made on the ground of deposit.

㈐ 따라서 이 사건 공탁이 무효임을 전제로 한 원고의 피고 증권예탁원, 피고 2 주식회사에 대한 주위적 청구는 나머지 점에 관하여 더 나아가 살펴 볼 필요 없이 이유 없다.

5. Determination on the conjunctive claim

A. Determination as to whether the main safety defense and the interest in confirmation exists

(1) The main defense of Defendant 5 Stock Company

㈎ 원고가 피고 증권예탁결제원의 공탁이 유효임을 전제로 하여 피고 2 주식회사를 제외한 나머지 예비적 피고들을 상대로 그들 사이에 있어서 앞서 살펴본 위 공탁물출급청구권이 피고 2 주식회사에게 있음을 확인하고 피고 2 주식회사에 대하여는 그 공탁물출급청구권의 양도 및 통지를 구하는 이 사건 예비적 청구부분의 소에 대하여, 피고 5 주식회사는 주위적 피고 증권예탁결제원이 피공탁자로 ‘ 피고 2 주식회사 또는 피고 3 주식회사 또는 피고 4 주식회사’로 한 상대적 불확지 공탁을 하였으므로, 그 피공탁자로 기재되지 아니한 가압류채권자들에 대하여는 확인의 이익이 없어 부적법하다고 주장한다.

On the other hand, in a lawsuit for confirmation, the benefit of confirmation as a requirement for the protection of rights is recognized only when the plaintiff's right or legal status is currently unstable and dangerous, and it is most effective to obtain a confirmation judgment against the defendant in removing such apprehension and danger. Thus, the defendant of the lawsuit for confirmation is a person likely to cause unstable and danger in the plaintiff's legal status by dispute over the plaintiff's right or legal relation, and only when it is against the defendant, the defendant has the benefit of confirmation.

However, since the claimant of the deposit for repayment is the person to whom the deposit is made or his successor and the person to whom the deposit is made is determined formally by the statement of the deposit, even if the creditor under substantive law is not designated as the person to whom the deposit is made, the right to claim the return of the deposit can not be exercised unless the depositor is designated as the person to whom the deposit is made, and even if the provisional seizure of the third party is stated in the provisional seizure of the reason for the deposit in case the deposit is made in accordance with Article 487 of the Civil Code, the third party cannot be the person to whom the deposit is made, and one of the persons to whom the deposit is made shall not be the person to whom the deposit is made, and only one of the other persons shall be the person to whom the deposit is confirmed in favor of the other person to claim the return of the deposit and submit it to the "written statement proving that he has the right to claim the return of deposit"

Therefore, the person entered in the deposit money as the person to whom the deposit is made can be received by exercising the right to claim the return of the deposit against the public official directly deposited. Since it is not necessary to seek confirmation of the right to claim the return of the deposit against the parties to the dispute, such as the person who is not the person to whom the deposit is made, the part of the claim for confirmation of the right to claim the return of deposit against the defendant 5 corporation should not be deemed unlawful as there is no benefit to

㈏ 한편 피고 증권예탁결제원이 2007. 1. 17. 이 사건 공탁의 법령조항에 민사집행법 제248조 제1항 에 의한 집행공탁을 추가하는 내용으로 공탁서정정신청을 하고 공탁공무원이 이를 수리한 사실은 앞서 인정한 바와 같고, 만약 이로써 위 공탁이 민법 제487조 의 변제공탁과 민사집행법 제248조 제1항 및 제291조 에 의한 집행공탁의 혼합공탁의 효력을 가지게 되는 것이라면 피공탁자에 대한 공탁금출급청구권 승소확정판결 이외에 가압류채권자들의 공탁금출급청구권 승소확정판결을 ‘출급청구권을 갖는 것을 증명하는 서면’으로 첨부하여야만 공탁금을 출급할 수 있다고 할 것이나{2004. 6. 5.자 공탁법인 3302-129 질의회답(공탁선례 200406-2)도 이와 같은 취지이다), 민사집행법 제248조 제1항 의 규정에 따른 집행공탁은 ‘압류된 금전채권’을 대상으로 한 것이어서 금전채권이 아닌 본건 보호예수주권에 대한 반환청구권에 대하여도 집행공탁의 효과가 생길 수 없고, 따라서 위와 같은 공탁서의 정정은 단순한 착오 기재의 정정에 그치지 아니하고 공탁에 의하여 실체관계의 변경을 가져오는 것으로서 공탁의 동일성을 해하는 내용의 정정에 해당하므로 당초의 공탁이 위 정정에 따라 민사집행법상의 집행공탁으로서까지의 효력을 가질 수는 없다는 점은 앞서 살펴본 바와 같으므로, 가압류채권자인 피고 5 주식회사에 대한 공탁물출급확인청구는 위 공탁서 정정에도 불구하고 여전히 그 확인의 이익이 없다고 보아야 할 것이다.

㈐) 원고는 피공탁자로 기재된 피고들 이외에도 공탁물에 대하여 권리주장을 하면서 피고 2 주식회사의 공탁물출급청구권을 방해하고 있는 위 나머지 피고들에 대한 분쟁의 일회적 해결을 위해서도 피공탁자로 기재되지 아니한 가압류권자들인 위 나머지 피고들을 상대로 공탁물출급확인을 구할 이익이 있다고 주장하나, 앞서 본 바와 같이 원고는 다른 피공탁자로 기재된 자들을 상대로 자기에게 공탁물출급청구권이 있음을 증명하는 내용의 판결이 있으면 그 공탁물의 출급이 가능하므로, 단지 분쟁의 일회적 해결이 필요하다는 사정만으로 그 확인의 이익이 있다고 보기는 어려운 이상 원고의 위 주장은 받아들일 수 없다.

(2) Benefits from the confirmation of the lawsuit against the remaining conjunctive Defendants

Since the existence of interest in confirmation in a lawsuit for false confirmation is a matter of ex officio investigation, the court should make ex officio determination regardless of the party's assertion. Thus, the plaintiff's conjunctive claim part against Defendant 6, Defendant 7, Defendant 8, Defendant 9, 10, and 11, who is the remainder of the conjunctive Defendants (provisional attachment creditors) who are not the depositee, is unlawful because all of the plaintiff's conjunctive claim part of the lawsuit

B. Judgment on the merits

(1) As recognized in the above Paragraph 3, the Plaintiff’s claim for the confirmation of the right to claim the release of deposited goods against Defendant 2, Defendant 3, and Defendant 4 Co., Ltd. is examined, since the Plaintiff’s lawful acquisition of the right to claim the release of deposited goods at least on July 2002 and the acquisition of the fixed date on July 10, 202 with the opposing power against the third party.

(2) In the case of compulsory protection, a deposit contract is concluded between the person who is obligated to hold the deposited securities (owner of the deposited securities), and the person who is obligated to receive the deposited securities and the Defendant Securities Depository. The contract is concluded between the person who is obligated to receive the deposited securities and the Defendant Securities Depository, and the owner of the deposited securities can exercise the right to claim the return of share based on the agreement on the deposited securities, and it is reasonable to view that the Defendant Securities Depository can exercise the right to claim the return of share based on his own ownership directly with the Defendant Securities Depository.

However, as seen above, Defendant 3 Co., Ltd. established a pledge on the instant shares by the method of transferring the right to claim the return of the share certificates against Defendant 2 Co., Ltd., and thus, it cannot be claimed any return of the instant share certificates against Defendant 2 Co., Ltd and the Korea Securities Depository. As such, on July 10, 2002, the Plaintiff could not claim the return of the instant share certificates against the third party with the opposing power for the transfer of the right to claim the return of the share certificates against Defendant 3 Co., Ltd., and Defendant 4 Co., Ltd, who subrogated to Defendant 3 Co., Ltd. and Defendant 3 Co., Ltd, cannot claim the right to claim the return of the deposited

(3) Therefore, the right to claim the return of deposited goods in this case shall be vested in Defendant 2 Co., Ltd. among the deposited parties, and as long as Defendant 3 Co., Ltd. and Defendant 4 Co., Ltd are disputing each other, the Plaintiff, the pledgee of the deposited goods in this case, on behalf of Defendant 2 Co., Ltd., in order to preserve the right to claim the return of share certificates against Defendant 2 Co., Ltd., and Defendant 4 Co., Ltd., the right to claim the return of deposited goods in this case, can be deemed to have a benefit

Furthermore, Defendant 2 Co., Ltd. bears the duty to return the instant share certificates to the Plaintiff, who is the pledgee of the instant shares. As so, as the Plaintiff seeks, the Plaintiff expressed his intention to transfer the right to claim the return of deposited goods with respect to the instant share certificates in lieu of the return thereof, and is also obligated to notify the Republic of Korea

Therefore, all of the plaintiff's conjunctive claims against defendant 2, defendant 3, and defendant 4 are justified.

6. Conclusion

Therefore, the plaintiff's primary claims against the defendant Securities Depository and the defendant 2 are all dismissed, on the ground that they are without merit. The plaintiff's primary claims against the defendant 5, the defendant 6, the defendant 7, the defendant 8, 9, 10, and 11 are all unlawful, and they are dismissed. The plaintiff's conjunctive claims against the defendant 2, the defendant 3, and the defendant 4 are all justified, and each of them is accepted. The judgment of the court of first instance is unfair on the ground that the plaintiff's conjunctive claims against the defendant 2, the defendant 3, and the defendant 4 are all reasonable. However, the judgment of the court of first instance cannot change the judgment so that the plaintiff's conjunctive claims against the above defendants are favorable to the defendant 6, the defendant 7, the defendant 8, 9, 10, and 111, and the plaintiff's conjunctive claims against the above defendants are dismissed, and the plaintiff's conjunctive claims against the above defendant are dismissed, and the court of first instance's decision against the defendant's claim against the defendant should be dismissed.

[Attachment List]

Judges Lee Young-gu (Presiding Judge)

심급 사건

-서울중앙지방법원 2005.3.25.선고 2003가합67439

서울고등법원 2007.4.19.선고 2005나74865

-대법원 2008.10.23.선고 2007다35596

원심판결

-서울중앙지방법원 2005. 3. 25. 선고 2003가합67439 판결

본문참조판례

-2002. 11. 21. 서울지방법원 2002카합3380호

-서울지방법원 2003가합23781호

본문참조조문