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장재현 경북대학교 법학연구원 2007 법학논고 Vol.0 No.26
[Abstract] Essay on Deposit in Korean Civil Law Chang, Jae-Hyoun* Deposit of Korean Civil law means thing for performance of obligation as extinction cause of claim. The Civil law of deposit has several points of construction as the following. 1. The provision of the latter part of the Civil law article 487 enacts “… where the obligee cannot be ascertained …”. What does this provision mean? And how does obligee demand thing deposited? 2. The Civil law article 489, clause 1 enacts “So long as the obligee has given his consent to the deposit or has been notified to receive the thing deposited in the Deposit Office or a judgement declaring the deposit effective has become final and binding, the depositor may recover the thing deposited …”. How and when does an obligation lapse regarding this rights of withdrawal? 3. What is nature of rights of withdrawal? And the Civil law article 489, clause 2 enacts “The provisions of the preceding Paragraph shall not apply where a pledge or a mortgage has been extinguished by making a deposit”. Then I wonder what has become of other security rights except for a pledge and a mortgage. A system of deposit settles an interest of parties and a state merely is custodian ought to having none of an interest in a legal act. So, to demand thing deposited can’t directly bring a civil action against a state. An obligation once lapses by deposit, but if thing deposited is withdrawn, an obligation is considered that it wasn’t retrospectively lapsed as from the time of deposit. Namely, obligation lapses on condition that exercising rights of withdrawal is a condition subsequent at the time of deposit. According to the Civil law article 489, clause 2, rights of withdrawal shall not be acknowledged when only a pledge or a mortgage has been extinguished by making a deposit. But other security rights except for a pledge and a mortgage are not all that different from a pledge and a mort- gage. Thus, the Civil law article 489, clause 2 must be applied to other security rights as well as a pledge and a mortgage.