공탁물 회수청구권 및 공탁물 출급청구권을 둘러싼 법률관계에 관한 소고

• 발행기관: 한국민사소송법학회
• 저자명: 현낙희
• 간행물 정보: 『민사소송』제25권 제3호, 195~254쪽, 전체 60쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2021.10.31

영문 초록

Once deposit is made to the deposit office, according to the Article 9 of the Korean Deposit Act, the creditor has the right to receive the deposit and the depositor has the right to recover the deposit. While these are two separate and independent rights over a same deposit, they are also interrelated as exercise of one right extinguishes the other. The legal relationship surrounding the deposit is complex and it also varies per different types of deposit. This article analyzes the legal relationships regarding security deposit and payment deposit by reviewing two recent Korean Supreme Court Cases, namely 2019Da256471 Judgement and 2018Ma5697 Decision, respectively. [2019Da256471 Judgment] With respect to security deposit, as Article 123 of the Korean Civil Procedure Act prescribes that “The creditor has the same right as a pledgee over the deposit.”, there has been a debate over the legal status of the creditor on whether it is a statutory pledge or a preferential reimbursement right. In this case, Supreme Court appears to have taken the view of the latter for two reasons. First, it has recognized the validity of the attachment by the creditor’s creditor on the creditor’s right to receive deposit. Second, it has implied direct receipt of the deposit as a principle method of exercising the creditor’s right. [2018Ma5697 Decision] As regards to payment deposit, the depositor may recover the deposit pursuant to Article 489 of the Korean Civil Act, in which case the deposit is deemed not to have been made and the effect of extinguishing the obligation disappears retroactively. In this case, the Supreme Court has ruled that when a defective payment deposit has been made, the creditor who has a separate right against the depositor may obtain attachment and collection order on the depositor’s right to recover the deposit as a compulsory execution fulling his/her separate right. Considering that such practice is allowed even when the payment deposit is proper, and that unlike German Civil Code there is no prohibition under Korean law, creditor’s right as such cannot be limited.

목차

Ⅰ. 들어가며

Ⅱ. 대법원 2019다256471 판결1)에 관하여

Ⅲ. 대법원 2018마5697 결정51)에 관하여

Ⅳ. 마치며

키워드

재판상 담보공탁 변제공탁 공탁금 출급청구권 공탁금 회수청구권 security deposit payment deposit creditor’s right to receive the deposit depositor’s right to recover the deposit