(2) Requirements for deposit
A. If the person eligible for compensation refuses to take compensation or cannot receive compensation.
① Refusal to receive
Refusal to receive compensation is the case where project operator provides compensation but person eligible for the compensation refuses to accept the compensation. If the depositary continues lawsuit claiming more compensation or if the rejection of the agreed amount is delivered in written form in advance by the depositary, depositary may refuse to accept.
② Impossible to accept
The case where depositary cannot accept compensation even though project operator wants to pay compensation. The case can be divided into de facto non-acceptance and legal non-acceptance. De facto non-acceptance refers to the case where address in resident registration cannot be found. Legal non-acceptance refers to the case where the person with the right to compensation does not have legal representative or guardian even though he is not able to accept the compensation by himself.
B. In case where project operator cannot find the person who is eligible for compensation
Even though there is person who is eligible for compensation from objective perspective, project operator may not know the person with fiduciary duty. This requires no mistake of project operator regarding the identification of eligible person with the right to compensation. The case is divided into one where project
operator cannot determine who is a true person with the right to compensation(relative uncertainty) and case where project operator does not know who is the depositary from the beginning(absolute uncertainty).
① In case where deposit with absolute uncertainty is recognized(depositary:
no identification of depositary)
Following cases are examples of deposit with absolute uncertainty.
1. In case where land to be expropriated is not registered and name exists in land register but without address.
2. In case where land to be expropriated is not registered and address exists in land register but without name.
3. In case where land to be expropriated is registered but owner in resister cannot be named as there is no address.
4. If the list of sharers which is part of register and list of sharers in land register are destroyed.
② In case where deposit with relative uncertainty is recognized.
Following cases are examples of deposit with relative uncertainty.
1. If the provisional registration for the ban on disposal with the right to request cancellation of transfer of ownership or the prospect registration of the right to request cancellation of transfer of ownership is completed for the reasons of invalid cause.
2. If there are more than 2 registration for the land to be expropriated(double registration) and the registrations have different owner name.
3. If the sum of shared equity in register becomes less than or more than 1 making it hard to identify just share of the people eligible for compensation.
4. If the eligible person for compensation died before the payment of
compensation or part or hole of the heir cannot be identified.
5. If there is ban on disposal or provisional disposal regarding the right to compensation
C. In case where project operator does not agree with the compensation decided by land expropriation committee
If project operator does not agree with the compensation decided by land expropriation committee so raises objection to Central Land Expropriation Committee, project operator should pay the compensation calculated by itself and deposit the difference between the amount calculated by project operator and amount decided by land expropriation committee. The deposited compensation cannot be paid until the completion of the procedure(Article 40.4 of Land Compensation Act).
The deposit for this reason can be performance deposit which is different from performance deposit under Article 487 of Civil Law as it exempts debt to provide compensation but the condition os the confirmation of original adjudication regarding the exercise of claiming for the deposited compensation by landowner.
D. If the payment of compensation is prevented due to seizure or provisional seizure.
If the payment of compensation if banned due to seizure or provisional seizure, it constitutes execution deposit. Execution deposit refers to the management of object and issuance to the executor that is done by depository house as the execution authority, person or the third party creditor consigns the work to the depository house in the process of forced execution or preservation execution.
However, the seizure by taxation office is not the reason for deposit as project
operator has the right to pay directly to the head of tax office as the seizure by public authority becomes schuldtitel.
① In case where seizure or provisional attachment was made to part of the right to claim compensation payment
If the part of the right to compensation is seized(provisional), the whole amount of compensation can be deposited but the deposit can be made for the amount seized(provisional). In case where the whole amount of compensation is deposited, debtor under seizure(provisional) can claim the taking out of the deposit for the amount that does not affect seizure(provisional).
② In case where there is competition between seizure and seizure or between seizure and provisional seizure regarding the right to claim compensation.
If part of the right to compensation is seized(provisional) and other order of seizure or provisional seizure is placed on the amount that exceeds the remaining amount, the effects of seizure and provisional seizure can be made to the whole part of the right to claim compensation, so this case constitutes the reason for deposit under Article 40.2.4 of Land Compensation Act.
③ If the seizure comes first with forced execution and then seizure is placed for unpaid tax
If the seizure on right comes first under enforcement act of civil law, head of the tax office can only request national tax to execution court or participate in attachment. Therefore the seizure by tax office have the effect of request for issuance. According to administrative rule by Supreme Court no. 542, if the seizure by forced execution comes before the seizure caused related to tax, the reason should be reported in accordance with seizure competition. Therefore
the case where seizure cased by forced execution comes before seizure caused by unpaid tax is subject to execution deposit.
④ In case where there is seizure caused by unpaid tax followed by seizure caused by forced execution on part of right to claim compensation.
If there is seizure caused by unpaid tax exists, the right to receive compensation is transferred to the person who puts seizure on the right. Therefore, the payment should be made to the creditor. In this case the seized amount is not in the boundary of execution deposit. However, for the amount deducted from seized by unpaid tax, the effects of seizure caused by forced execution can be effective.
If there is seizure, the deposit can be made depending on difference cases of the order of seizure.
⑤ In case where there is competition between seizure and collection order on the right to compensation
If there is seizure or collection order from one creditor to the right to compensation and then other seizure or collection order is made by other creditor, the deposit can be executed depending on difference cases of the order of seizure.
⑥ If the single or multiple seizure or attachment orders were placed on part or whole of the right to compensation but there is no confirmation(including the case where there is competition between seizure and attachment order).
Attachment order is the order by the court with which seized bond in cash is transferred to creditor instead of repayment. If the attachment order is delivered to the third creditor(project operator), it is regarded that the debt is paid in retrospect to the timing of delivery(Article 229.7 and 231 of Civil Execution
Act).The attachment order delivered can be appealed immediately and immediate appeal should be done within 1 days after the announcement of trial. This period cannot be change(under Article 444 of Civil Procedure Act) so the order of attachment without objection including immediate appeal is confirmed.
The order of attachment becomes effective after confirmation(Article 229.7 of Civil Enforcement Act) so the delivered order or seizure and attachment is not effective until the confirmation of order of attachment except for seizure.
The confirmation of the order of attachment can be checked by the immediate appeal and result of trial after immediate appeal. However, it is not appropriate for the 3rd party debtor(project operator) take the responsibility of investigation.
Therefore if it is not clear whether the order of seizure is confirmed or not after the delivery of the order of seizure and attachment, execution can be done based on the case where seizure order is placed to right to claim compensation.
⑦ In case where the seizure or attachment order is placed on the part of right to claim compensation and other seizure and attachment order is placed and then the previous seizure and attachment order is confirmed.
Before the order of attachment is delivered to the third creditor, if the seizure or provisional seizure or request for dividend is made to the monetary claim, the order of attachment does not effective(Article 229.5 of Civil Enforcement Act). Therefore, the later order of attachment is invalid and first order of attachment can be effective after confirmation. Even in this case the order of seizure is effective.
Therefore, for the amount for which seized amount by the first order of seizure or attachment is deducted, it is regarded that there os competition between seizure.
The amount cause by the first order of seizure and attachment, can be paid to the creditor or separately deposited after deduction under civil law if the eligible person refuses to accept the amount.
(4) If the case is not relevant to reason for deposit Following cases are not subject to deposit.
1. If the order of seizure or attachment is confirmed on the amount which is equal to or more than the compensation amount or if there is single order of seizure and collection, the money should be provided to those with right to collection and attachment(Judgement 98 da no. 31899 in June, 23, 2000, Supreme Court).
2. If there is single seizure caused by unpaid taxation on the amount which is equal to or more than the compensation amount , the whole amount of compensation decided by adjudication should be provided to those with seizure right.
3. If the seized amount caused by the forced execution(in case of confirmation) or seized amount caused by collection order or unpaid tax is the same as the total amount of compensation, the seized mount should be provided to each person with collection right.
4. In case where seizures caused by unpaid tax compete right to taxation comes before general right. But if the right to taxation compete, the principle of seizure first rule. This rule means that the taxation related to seizure is preferred over other taxation(Article 36.1 of Basic National Tax Act, and Article 34.1 of Local Tax Act). If there is competition among seizures caused by unpaid tax, relevant tax should be considered first and other tax should be provided to the relevant party considering the timing for formation of right to put tax.