질권과 제3채무자의 공탁의 효력

The Supreme Court has acknowledged the effect of Pledge established in order to secure a large number of unspecified bonds that change or increase in continuous business relations (Supreme Court Decision 2009 Da43621 Decided Oct. 15. 2009). Due to the nature, there are inevitable cases that it is unclear whether the existence of secured bonds secured as pledges and whether the period of performance of the secured bonds has arrived. Accordingly, in a situation when the pledgee can make a direct request to the third debtor pursuant to Article 353 (1) and (2) of the Civil Act due to the arrival of both the secured bonds and the piled bonds, the third debtor deposits the equivalent amount of the piled bonds. Or, there are cases in which the third debtor deposits the equivalent amount of the bonded bonds even though the pledgee has not made a request for deposit pursuant to Article 353 (3) of the Civil Act in a situation when the payment period of the bonded bonds has arrived earlier than the payment period of the bonded bonds. In each case, the effect of the deposit of the third debtor is questioned. When the payment period for both the secured bond and the bonded bond has arrived, in principle, the third debtor cannot counter the pledgee by depositing the bonded bond. Moreover, it is possible to counter the pledgee through mixed deposit. This was confirmed through the judgment of Seoul High Court Decision 2016 Na2060073 Decided June 14. 2018 and Seoul High Court(Chuncheon) Decision 2019Na50371 Decided Feb. 12, 2020. When repayment of pledged bonds arrives before the time to pay the secured bonds and if the pledgee's right to claim the deposit is not exercised despite the fact that the pledgee may request the deposit of the pledged bonds from the debtor, It is desirable to extend and interpret Article 353 of the Civil Act in order to resolve the risk of default damages of the third debtor and the inability to claim the opposite bond, so that the third debtor may deposit the bond. Regardless of whether the seizure is contested on the bond, the previous judgments (Seoul High Court Decision 2016 Na2060073 Decided June 14. 2018 and Seoul High Court(Chuncheon) Decision 2019Na50371 Decided Feb. 12, 2020) approves the third debtor's trust. As described above, the judgment to the effect of approving the effect of the deposit of the third debtor for the purpose of rational adjustment of the interests of each party surrounding the pledge seems to be desirable in terms of enhancing the specific validity of the deposit. However, detailed rulings need to be made in the future, as it is not clear what is the legal nature of the third debtor, who should be designated as the trustee, and whether only the right-setter is notified of the case needs to be made.