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A Study on the Construction Theory of a Claim of the Deposit for Payment

  • DONG-A LAW REVIEW
  • 2007, (40), pp.149-185
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Jong Geun Bae 1

1동아대학교

Candidate

ABSTRACT

Deposit is one of the legal relations arising between depositor, depositee, and the state. Generally speaking, debtor becomes depositor, creditor becomes depositee and state becomes trustee of deposited material, and debtor becomes free from binding of debt, and the claim of lender to debtor continues to exist being transformed into a claim of the deposited material for payment. As the content and counterpart of the claim of the creditor are changed, many problems such as who is real depositee, against whom and how a claim should be realized, are arisen. The problem of deciding the content and counterpart for the realization of the claim of deposit for payment is relying on the problem of the nature of the state as a trustee of deposit. The two views between one that the state is a mere agency of the depositor and the other that the state is a independent administrative body produce different answers. If we comprehend the legal relation of the matialization of the claim of the deposit for payment as the legal relation between depositor and depositee and the state merely takes the role of custodial(this is the view of the supreme court precedent), then it is prerequisite for one who claims the right of the deposit to pile a confirmation suit to decide the rightful depositee. And there is also the problem whether there is the need for rightful depositee of the deposit to pile a confirmation suit to solve the dispute with the formal depositee. There are some types of the deposit for payment. The first is the deposit for determined reciver. In this case the deposit official only has the formal authority of investigating the name of the person who claims the deposit, and the dispute over the desposit is confined to dispute over the problem of the disposal of the deposit official. The second is the deposit for undetermined reciver. In this case the matter is who should be the rightful person for the deposit among the documentary named alternate depositees. So in this case, the sort of process to solve the dispute on the matter who is the rightful depositee is related to the nature of the deposit, and upon which the type of ligal suit may be determinded. In this treatise I systematized the construction theories of the materializing method and the redemption process of the claim of the deposit for payment in three patterns. On one hand there is a supreme court decision that admitted a performance suit on the claim of deposit for payment without the process of complaint against the disposal of deposit official, on the other hand there is anther opposite supreme court decision, so we are confused as if the supreme court lacks consistency. And I tried to extract some principles in this treatise on which the precedents are made. Conclusively it is right first of all to start the discussion on the premise that the nature of the legal relation of the deposit for payment is the relation of civil law. And then I conclude that the legal relation of the dispute surrounding the claim of the deposit for payment is basically the civil relation between depositor and depositee. So it is right that one who claims a right on the deposit should ask to deliever the deposit concerned to the deposit official first, and he may go further to the complaint against the official if the official rejects his demand. Furthermore he can pile a performance suit against the depositor when the complaint is dismissed. And if there is a dispute on the rightful depositee because the depositee was changed after the deposit was made or the diposit was made for undetermined reciver, it is needed to solve the problem in the frame of private dispute between the two parties. So if there is an agreement between the two parties it will be respected, but if not, one may go ahead to pile a confirmation suit against the other, and he may ask to deliever the deposit concerned to the deposit official on the ground of the winning judgement, furthermore he can pile a performance suit when the claim is dismissed. Finally when the deposit was made for unidentified reciver, the regal relation is arising between the two parties of depositor and depositee, and it is needed to solve the problem in the frame of private dispute between the two parties. So if there is an agreement between the two parties of depositor and depositee, it will be respected, but if not, he who assert that he is the real deposetee may go ahead to pile a confirmation suit against the depositor, and he may ask to deliever the deposit concerned to the deposit official on the ground of the winning judgement, furthermore he can pile a performance suit when the claim is dismissed. In addition, in the case that all parties are participated in one jegal process surrounding the dispute of who is the rightful depositee concerned and it is possible to determine in the very one process, the court can decide to order the state to deliever the deposited meterial to the rightful depositee without the process of complaint against the deposit official through the process of performance suit according to the view of civil-relation theory From the contradictary appearance of the supreme court decision on the subject whether the court may permit the performance suit arising from the dispute of the claim of deposit for payment, I have reasoned the basic view on the standards of the supreme court decision and I have categorized the permissible standards of the confirmation suit and performance suit.

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