2. BB

3. CCC;

4.D;

5. E;

6. F;

7. GG;

Creditors' ZZZ, Commercial Arbitration, YY

H Representative Director HH

Law Firm KK, Attorney in charge of Law Firm K

2. An execution officer shall publicly notify the purport of paragraph (1) above in an appropriate manner.

3. The remaining claims of the creditors are dismissed;

4. One-fifth of the costs of lawsuit shall be borne by the obligee, and the remainder by the obligor, respectively.

New audience Sheet

The order of Paragraph (1) of this Article and the debtor shall not allow the general visitors to enter the ordinary city in ordinary times through the indoor skiing ground entrance door abutting on roads from 1 to 10 san Youth Training Center.

The following facts are explained in accordance with the purport of the records and the entire examination of this case.

가. 채권자들은 부산 ◆◆구 동 45-00에 있는 전원빌라(이하 이 사건 빌라라고 한다) A, B, C동에 거주하는 주민 또는 이 사건 빌라의 소유자들이고, 채무자는 채권자들 주거지에서 약 1m 거리의 위쪽인 부산 VV구 동 산 53-00 일원에서 ♥♥산 실내스키장(이하 이 사건 실내스키장이라고 한다) 신축공사를 시행하는 사업체이다. 나. 채무자는 2005. 4. 00. ▶▶ 광역시로부터 설치 인가를 받아 부산 교구 동 산53-00 외 2필지에 지하 1층 지상 0층 규모의 이 사건 실내스키장을 신축하기로 하여, 2006. 0.경부터 이 사건 실내스키장 신축공사를 착공하였다.

그런데 이 사건 실내스키장 신축공사현장에 이르는 도로는 ◈◈대로에서 ①①산 청소년수련원에 이르는 왕복 2차선도로(이하 기존도로라고 한다) 뿐인데, 이 기존도로는 ◈◈대로에서 채권자들의 주거지를 지나, ♥♥산 중턱을 따라 위 실내스키장 뒷쪽에 있는 출입문에 이르고, 그 위쪽으로 ①0 청소년수련원까지 개설되어 있다.

Residents in connection with existing roads, including creditors, have caused a lot of inconvenience in life when the defendant company commences business by using the above existing roads, and therefore, the defendant company opened and used new roads and requested the debtor not to use the existing roads and continued to file a civil petition with the competent jurisdiction office.

다. 이에 채권자를 포함한 전원빌라 A, B, C동 주민들이 주민 협상안을 제시하였고, 채무자가 위 협상안에 대하여 2006. 4. 00. 답변을 제시하여 합의에 이르게 되었는데[이하 제1차 합의라고 한다. 소갑2호증의 1(스키돔 공사에 관한 건) 참조 : 소갑2호증의 1 및 아래의 소갑5호증은 그 문서에 채권자들과 채무자 쌍방이 서명, 날인하지는 않았지만 채권자들의 요구사항에 관하여 채무자가 자신이 이행할 수 있는 사항을 확약하여 제시한 것이고, 이를 채권자들이 수용한 것이므로, 위 소갑2호증의 1과 소갑5호증의 내용과 같은 약정이 당사자 사이에 있었던 것으로 인정할 수 있어, 이를 쌍방간의 합의로 본다), 그 주요 내용은, ① 채무자는 ◈ ◈구 쪽 기존도로에 접하는 후문은 시설완공 후 폐쇄하고 영업용 통로로 사용하지 아니하며, ② 채무자는 지역주민들의 편의, VV 구청의 요구, 공사차량의 출입 등을 위하여 신설도로를 개설하기로 하고 VV구청으로부터 인가를 받는 즉시 도로공사를 시작한다는 것이다.

After the first agreement, as the new road was delayed, creditors, etc. visited the site and visited the site on September 00, 2006, and there was a delay in the establishment of the new road due to purchase of the road site by non-applicant MM who used the office of representative director of the debtor, and after the first agreement, they agreed to establish the new road so that the existing road entrance is closed at the time of completion of the new road and is not opened in any case at the time of completion of the construction, and that it is not opened at the request of the administrative agency after the next agreement.

라. 그러나 채무자가 신설도로를 개설하지도 아니한 상태에서 2007. 0.경 ▶▶일보에 이 사건 실내스키장은 2007. 0.경 개장예정인데, 신설도로 개설을 실내스키장 개장 2년 뒤로 연장해 주었다는 기사가 나자, 채권자 등과 기존도로 주변의 주민들이 채무자에게 확약을 요구하여, 채무자는 회장 이하 임원진의 연명으로 2007. 3. 00. 채권자 등 기존도로 주변 주민들과 제1차 합의를 보완하는 약속(이하 제2차 합의라고 한다. 소갑5호증 참조)을 하였고, 그 주요 내용은 다음과 같다.

(1) The debtor cannot open an indoor skiing site using existing roads.

If it is thought that it is inevitable to open a new road before the completion of the new road, for example, if it is judged that the construction status of the newly established road cannot be met on the opening date, no objection is raised even if the residents prevent the construction by using any means, such as mobilization of vehicles, etc.

(2) The debtor shall not open door door other than door door so that entry into the Ski Sea does not result in the use of the existing road due to the circumstances, such as that the new road is connected to the existing road. No objection shall be raised even if it is committed by any means.

(3) The debtor is to keep the entrance door of the existing road from locking with iron door, prevent visitors from entering the road, monitor whether it is open to the CCTV, and to keep the key in the water level room by means of electric source gate locked when violating two times or more.

마. 채무자는 2007. 7. 0.경에야 기존도로의 대체도로로서 ♥♥산 터널 쪽에서 이 사건 실내스키장에 이르는 신설도로 개설공사에 착공하여, 2007. 12. 00. 완공을 목표로 현재 공사중에 있다.

2. The assertion of the party executives;

A. Creditors' assertion

The obligees asserts that the above first and second agreements between the residents such as the obligees and the obligor do not operate the indoor skiing ground business of this case by using the existing roads, open new roads, and they agreed to prevent the entry of the users through the entrance in the existing roads, so the obligees claim against the obligor that they have the right under the agreement to demand that the general customer not run the business for the general customer or not enter the existing entrance at ordinary times by using the indoor ki facilities of this case until the completion of the new road.

B. The debtor's assertion

For this reason, the obligor's agreement between the obligees and the obligor is unavoidable to respond to the obligor's risk of fatal damage, such as that the obligor bears large compensation for delay against the buyers due to long-term illegal acts, such as interference with the obligee's construction, and the obligor's intent contained in the agreement of this case is not to open the indoor skiing ground facilities of this case until the completion of construction, but to make every effort to minimize the obligor's damage and dissatisfaction in carrying out construction, so the obligee's claim of this case does not exist, and if the application of this case is accepted for reasons of the increase in the traffic volume of the future, the obligee's profit is not accrued as it is against the obligee's right to preserve, and if the application of this case is accepted for reasons of the inconvenience of the obligor and the large number of buyers, it is not necessary to preserve the claim of this case.

3. Determination

A. By the time of completion of the new road construction, determination on the application for provisional injunction using the indoor skiing ground facility of this case

(1) In full view of the facts revealed above, the obligor was bound to use the existing road, which is only the only road that can be available to the above facility as the obligor newly constructed the indoor skiing ground facilities. It can be sufficiently recognized that the obligee, including the obligee, agreed not to open the indoor skiing ground with other agreements in order to prevent the obligee’s living environment from being infringed, such as the obligee, etc. living around the existing road, such as noise, dust, traffic congestion, traffic congestion, traffic accident risk, etc., and the obligee, etc., should not open the indoor skiing ground in the existing road. Thus, in relation to the obligor, the obligor is obliged not to limit the obligee’s right of passage in the existing road. In accordance with the above agreement, the obligor is obliged not to open the indoor skiing ground facilities in the case of the obligor’s use of the indoor skiing ground facilities in the existing road until the completion of the construction of the new road, and the obligor is obligated not to use the existing apartment ground by the time of the completion of the construction of the existing road.

(2) The agreement between the obligor and the obligor is completed through several negotiations, etc. between the obligor and the obligees, and as alleged in the obligor, there is no evidence to acknowledge that the agreement in this case was an unfair juristic act which considerably lacks fairness between the obligor’s old-age, rashness, or incompetence due to the obligor’s tort, or the obligor’s tort. Considering the content of the commitment based on the agreement in this case, the obligor’s assertion that the agreement in this case would not open the indoor skiing ground until the completion of the construction of the new agreement, rather than not open the indoor skiing ground facilities until the completion of the construction of the new agreement in this case, it is nothing more than the obligor’s best to minimize the obligor’s damage and dissatisfaction (if the construction of the new road in this case cannot conform to the opening of the indoor skiing ground in this case, the obligor cannot be deemed to have obtained the obligor’s right to open the indoor skiing ground and the obligor’s right to open the outer skiing ground in this case.

(1) In the first agreement above, the door abutting on the existing road (the latter part) is closed after the completion of the facility and it is not used as a business passage. In the second agreement, it is prohibited to open a door other than the door of entry to Ski Sea so that entry into the existing road does not result in the use of the existing road due to the reasons such as the opening of the indoor skiing site by using the existing road and the replacement road is connected to the existing road.

(2) Therefore, taking into account the circumstances and purport of the agreement between the obligees and the obligor in this case, the obligor’s obligation to close the entrance and exit of the existing road after completion of the new road in which the first and second agreements regarding the obligee’s application in this part were reached, shall be deemed as the obligor’s obligation derived from the method of preventing the obligor from passing the obligee’s residential area through the obligee’s residential area by using the existing road for the use of the indoor skiing ground facilities in this case, and from a sudden and rapid breadth of the two lines narrow roads, etc., the danger of traffic accidents to nearby residents and the disadvantage of infringement of the obligee’s living benefits due to traffic congestion.

Therefore, as long as the obligor’s normal obligation with respect to the closure of the entrance of the existing road and the prevention of entry by the general visitors is acknowledged within the scope of impeding the obligees’ living interests. Since the entrance of the existing road is connected to the roads where the general public can freely use, the obligor’s above obligation cannot be deemed to include the obligor’s obligation to prevent the entry of the general visitors in the indoor skiing ground of this case through the entrance of the existing road, using another new road in an area where the obligees’ living interests exceed the above scope that interferes with the obligees’ living interests. Thus, the obligee’s application for closure of the entrance of this case and the prevention of entry by all the general visitors is without merit.

4. Conclusion

Therefore, the obligees' motion of this case is recognized as preserved rights in respect of the part of motion for prohibition of business using the indoor skiing ground facility of this case until the completion of the new road, and in cases where the entry into the indoor ki ground is to be used in the existing road, the obligees' living inconvenience can be sufficiently anticipated. Thus, the necessity of preservation is recognized, and the remaining part of motion is dismissed as it is without merit. It is so decided as per Disposition.

August 27, 2007

Judges Cho Jong-chul

Judges Lee Jae-hee