[Instance]
3rd Instance
[Subject Matter]
Other
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
1. In an action for confirmation, there must be an interest in confirmation as a requirement for legal protection, and the interest in confirmation is recognized only when obtaining a judgment of confirmation is the most effective and appropriate means of removing an existing anxiety or risk to the Plaintiff's rights or legal status. Therefore, in an action for confirmation, only a person who has caused or is likely to cause anxiety or risk to the Plaintiff's rights or legal status has standing to be sued as the Defendant.
2. As in this case, where a project operator deposits compensation money pursuant to Article 40, Paragraph 2, Item 1 of the Act on Acquisition of and Compensation for Land, etc. for Public Works (공익사업을 위한 토지 등의 취득 및 보상에 관한 법률) on the ground that the person entitled to receive the compensation is unable to receive it due to an unknown address, in light of the following: (i) the deposit-for-performance system is essentially designed to adjust legal relationships between private parties; (ii) since a deposit official has only a formal power of review, he or she cannot make a final determination as to matters such as the identity between the depositee and a person claiming to be the rightful holder of the right to receive the compensation, and this issue cannot be resolved even through an objection to, or appeal against, the disposition of the deposit official; (iii) it is the depositor who is deemed to know best who the rightful holder of the right to withdraw the deposit is; and (iv) even a depositee or a person who is in fact the rightful holder of the right to withdraw the deposit is, in principle, not permitted to directly claim payment of the deposit money against the State by way of civil litigation (see Supreme Court Decision 91Da15447, delivered on July 12, 1991, etc.) — in view of the foregoing, a person who is the rightful holder of the right to withdraw the deposit money but has been refused withdrawal by the deposit official has an interest in bringing an action against the project operator, who is the depositor, seeking confirmation of the right to withdraw the deposit money, in order to remove the anxiety or risk to his or her legal status.
The judgment of the court below, which is to the same effect, is justified, and there is no error of misapprehension of the law, etc., as alleged in the grounds of appeal.
3. Therefore, the appeal is dismissed, and it is so decided as set forth in the Order by the unanimous opinion of the Justices who participated in the decision.
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[Lower Court – Seoul High Court Decision 2006Na20704, 2006Na20711, delivered on September 21, 2006]
[Order] Defeat of the Administrative Agency
1. All of the Defendant's appeals are dismissed.
2. The costs of the appeal shall be borne by the Defendant.
[Reasoning]
1. Basic facts
A. The deceased Nonparty 1 was born on May 5, 1912. His name in the family genealogical record (族譜) was "Jeong Dong-gil (鄭東吉)," and his name in the family register (戶籍) was "Nonparty 1." The deceased used both his genealogical name and his family register name while residing at (detailed lot number omitted), the same dong, next to (detailed lot number omitted), Jungwon-gu, Seongnam-si, which is the clan village of the Yanggyeong-gong branch of the Gyeongju Jeong clan.
B. Nonparty 2 completed registration of preservation of ownership on December 2, 1961, with respect to (A) and (B) real estate listed in the attached list, which is the land before subdivision, i.e., 436 pyeong of dry field at (detailed lot number omitted), Jungwon-gu, Seongnam-si, and Nonparty 3 completed registration of preservation of ownership on the same date with respect to (C) real estate listed in the attached list.
C. Nonparties 2, 3, 4, 1, and 5 agreed to co-own the real estate listed as (A) through (C) in the attached list at a 1/5 share each. Accordingly, on April 14, 1962, Nonparty 2 completed registration of transfer of ownership in favor of Nonparties 3, 4, 1, and 5 with respect to each 1/5 share of the (A) and (B) real estate listed in the attached list, and Nonparty 3 completed registration of transfer of ownership in favor of Nonparties 2, 4, 1, and 5 with respect to each 1/5 share of the (C) real estate listed in the attached list.
D. At the time of completing the respective registrations of transfer of ownership with respect to the real estate listed as (A) through (C) in the attached list as above, the deceased Nonparty 1 recorded his name as owner not under his family register name but under his genealogical name, "Jeong Dong-gil," and, with the exception of Nonparty 3, recorded the registered addresses of the remaining four persons all as (detailed lot number omitted), Seongnam-si.
E. Meanwhile, on February 25, 1965, Nonparties 6, 7, 5, and 1 completed registration of transfer of ownership at a 1/4 share each from Park Nam-jeong, the owner, with respect to (D) and (E) real estate listed in the attached list, which is the land before subdivision, i.e., 214 pyeong (707㎡) of paddy field at (detailed lot number omitted), Jungwon-gu, Seongnam-si; at that time, Nonparty 1 recorded his actual place of residence, (detailed lot number omitted), Seongnam-si, as his registered address (hereinafter, the respective shares owned by the deceased Nonparty 1 among the real estate listed as (A) through (E) in the attached list are referred to as the "shares of the real estate in this case").
F. From October 20, 1968, the deceased Nonparty 1 resided at, among other places, (detailed lot number omitted), Seobu-myeon, Gwangju-gun, Gyeonggi-do (currently (detailed lot number omitted), Hanam-si), which was his initial registered resident address, and died on December 13, 1996, at (detailed lot number omitted), Hanam-si.
G. Meanwhile, in the course of implementing the Dochon District Housing Site Development Project, the Defendant expropriated the (B), (C), and (E) real estate in this case through an adjudication of expropriation by the Central Land Expropriation Committee. At that time, since it was impossible to ascertain the actual address, other than the registered address, of Nonparty 1 [recorded as "Jeong Dong-gil" on the registry for the (B) and (C) real estate], who was the shareholder-owner of each of the above real estate, the Defendant deposited the following amounts on February 4, 2005, at Suwon District Court, Seongnam Branch, Case No. 2005Geumje1065 and Case No. 2005Geumje1064, respectively, on the ground of "inability to receive compensation due to unknown address" under Article 40, Paragraph 2, Item 1 of the Act on Acquisition of and Compensation for Land, etc. for Public Works: KRW 172,078,420, being the expropriation compensation for each 1/5 share of the (B) and (C) real estate in this case, with the depositee's name and address recorded as "Jeong Dong-gil, address unknown (last address: (detailed lot number omitted), Jungwon-gu, Seongnam-si)"; and KRW 30,510,370, being the expropriation compensation for the 1/4 share of the (E) real estate in this case, with the depositee's name and address recorded as "Nonparty 1, address unknown (last address: (detailed lot number omitted), Jungwon-gu, Seongnam-si)" (hereinafter referred to as the "deposit money in this case").
H. Thereafter, around October 2005, the Plaintiffs, who are the statutory heirs of the deceased Nonparty 1, and Nonparty 8, agreed through a division of the inherited property that the Plaintiffs would own the entire right to withdraw the deposit money for the compensation for expropriation adjudication with respect to the shares of the (B), (C), and (E) real estate in this case, and on November 7, 2005, applied to the deposit official of the above court for withdrawal of the deposit money in this case. However, the deposit official issued a notice of non-acceptance on the ground, among others, that there was insufficient proof that the Plaintiffs' deceased father, Nonparty 1, was the same person as the depositee recorded on the deposit document.
[Basis of recognition] The descriptions of Exhibit A No. 1, Exhibit A Nos. 2-1, 2, Exhibit A Nos. 3-1 through 3, Exhibit A Nos. 4-1 through 4, Exhibit A Nos. 5-1 through 3, Exhibit A Nos. 6-1 through 4, Exhibit A Nos. 7-1, 2, Exhibits A Nos. 8 through 11, Exhibit A Nos. 12-1 through 3, Exhibit A Nos. 13-1, 2, Exhibit A Nos. 14-1 through 6, Exhibit A Nos. 15-1, 2; the testimony of Witness Nonparty 9 at the first instance; and the overall purport of the pleadings.
2. Determination on the preliminary objection
A. Argument
With respect to this action in which the Plaintiffs seek confirmation that they are the holders of the right to withdraw the deposit money in this case, the Defendant contends as follows: since, in expropriating the shares of the (B), (C), and (E) real estate in this case, the Defendant could not ascertain the address and actual residence of "Jeong Dong-gil" or "Nonparty 1," who was the registered owner, other than his name, and therefore specified the depositee based on the registered ownership name and address before lawfully depositing each of the above deposit amounts, if the depositee recorded on the registry and the Plaintiffs' deceased father, "Nonparty 1," are indeed the same person, the Plaintiffs need only submit to the deposit official the supporting materials and proof of inheritance in order to withdraw the deposit money; and if the deposit official refuses the request for withdrawal on the ground of insufficient supporting materials, the Plaintiffs should seek confirmation of the right to withdraw against the State, and there is, contrary to this, no legal interest in seeking confirmation against the Defendant, who is the depositor and has already fulfilled the obligation of deposit, that the Plaintiffs hold the right to withdraw the deposit money.
B. Determination
(1) The deposit system operates on the premise of the formal power of review of the deposit official and the mechanical and formal handling of deposit affairs, and therefore, in principle, the depositee must be specified. Moreover, for the depositee to be deemed specified, the identity of the depositee must be established to such a degree that there is no room for the deposit official's judgment to intervene and no impediment to the service of the notice of deposit (see Supreme Court en banc Decision 96Da11747, delivered on October 16, 1997). Meanwhile, a person who intends to withdraw the deposit money must, in the absence of special circumstances, submit a document proving that he or she holds the right to withdraw, pursuant to Article 8, Paragraph 1 of the Deposit Act (공탁법) and Article 30, Item 2 of the Rules on Deposit Affairs Handling (공탁사무처리규칙).
(2) However, if the address of the depositee recorded on the deposit document does not match, and cannot be linked to, the address on the resident registration record, the depositee may submit to the depositor address-supporting materials capable of proving that he or she is the same person, and then correct the address on the deposit document (Article 27-2 of the Rules on Deposit Affairs Handling) before directly requesting withdrawal of the deposit money. In such a case, if the depositor arbitrarily refuses the request to correct the deposit document, the depositee may obtain a judgment of confirmation (including a settlement or mediation record) of the right to withdraw the deposit money against the depositor, and attach the transcript of the judgment and a certificate of finality as "a document proving the right to withdraw," in order to request withdrawal of the deposit money (Beopjeong Order No. 168, dated March 31, 1995). Furthermore, in a situation where, notwithstanding the recognition of identity between the actual right holder of the deposit money and the depositee recorded on the deposit document, the actual right holder is unable to request withdrawal of the deposit money due to a discrepancy in the recorded information, it accords with the purpose of the deposit system to allow the actual right holder to obtain such a judgment of confirmation against the depositor and thereby withdraw the deposit money based on the transcript of the judgment and a certificate of finality, even without correction of the deposit document.
(3) This is because, in general, a person performing an obligation has, under the principle of good faith, a duty to cooperate with the obligee's receipt of performance, and the Rules on Deposit Affairs Handling provide that a person performing an obligation, in making a deposit for performance, shall cooperate in the obligee's withdrawal procedure (Article 19, Paragraph 2, Item (f); Article 20, Paragraph 3; Article 22, Paragraph 1; Article 27, Paragraph 1; Article 30, Item 1, etc.). Such duty of cooperation on the part of the person performing the obligation, i.e., the depositor for performance, applies equally where compensation money for land expropriation is deposited pursuant to land expropriation procedures. Accordingly, the depositor bears a duty, even after the deposit, to make efforts as far as possible to ascertain the obligee, and, upon ascertaining the obligee, to cooperate so that there is no impediment to the obligee's withdrawal of the deposit money. Moreover, it is also justifiable as a matter of legal policy to allow the obligee to obtain a judgment of confirmation of the right to withdraw the deposit money against the project operator (the depositor), who implemented the expropriation procedure, rather than against the depositary institution (the State), which has no information or materials whatsoever regarding the ownership of the expropriated land, thereby enabling the request for withdrawal of the deposit money (in this respect, the Defendant's argument that a change in the depositee's name would impair the identity of the deposit and is thus impermissible under the Deposit Act, or that a judgment of confirmation must be obtained against the State, cannot be accepted).
(4) According to the basic facts set forth above, the Plaintiffs' deceased father, Jeong Gil-seong, is recognized, in terms of the substantive relationship, to be the same person as "Jeong Dong-gil" or "Jeong Gil-seong," the depositee recorded on the deposit documents with respect to the deposit money in this case; nevertheless, the Plaintiffs, as his heirs, had their request for withdrawal of the deposit money rejected due to insufficient proof that the Plaintiffs' deceased father, Jeong Gil-seong, and each of the above depositees are the same person. Inasmuch as the Defendant disputes such identity and refuses to correct the recorded matters concerning the depositee on the deposit documents, obtaining a judgment of confirmation against the Defendant constitutes an effective and appropriate means for the Plaintiffs to resolve the legal dispute concerning the withdrawal of the deposit money, and therefore there is an interest in confirmation. Accordingly, the Defendant's argument is without merit.
3. Determination on the merits
According to the facts found above, the shares of the (B), (C), and (E) real estate in this case were jointly inherited at 1/3 each by the Plaintiffs and Nonparty 8 upon the death of the Plaintiffs' deceased father, Nonparty 1, on December 13, 1996, and thereafter, the deposit money in this case, which the Defendant deposited as compensation determined by adjudication upon expropriating each of the above real estate, ultimately came to belong to the Plaintiffs pursuant to the agreement on division of inherited property entered into by the Plaintiffs and Nonparty 8 around October 2005.
4. Conclusion
Accordingly, the Plaintiffs, as the holders of the right to withdraw the deposit money in this case, also have a legal interest in seeking, against the Defendant, confirmation that the Plaintiffs are the holders of the right to withdraw each of the above deposit amounts in order to withdraw the deposit money, and therefore the Plaintiffs' claim in this case is well-founded and shall be granted. Since the judgment of the first instance reached the same conclusion and is justified, all of the Defendant's appeals are dismissed.
[Attached List of Real Estate Omitted]