Main Issues

Cancellation of Provisional Disposition Execution and Liability for Damages

Summary of Judgment

If a creditor who has completed the execution by receiving a provisional disposition for prohibition of entry, voluntarily terminates the execution, the creditor shall be liable for damages caused by the execution of the provisional disposition, unless it is proved that the application was due to justifiable grounds.

[Reference Provisions]

Articles 755 and 760 of the Civil Procedure Act, Article 709 of the Civil Act

Plaintiff-Appellant

The Foundation for the Education Foundation of the New Life School of the Gyeongbuk-gu Association;

Defendant-Appellee

Daegu Namnam School Maintenance Foundation, a foundation

Judgment of the lower court

Daegu District Court Decision 57Do104 delivered on September 13, 1957, Daegu High Court Decision 57Da104 delivered on September 13, 1957

Reasons

In a case where a creditor who received a provisional injunction against entry into the real estate applied for a provisional injunction against entry into the real estate and voluntarily released the execution after the execution was completed, the creditor is obligated to compensate the debtor for damages arising from the execution of the provisional injunction unless he proves that the application was due to a justifiable cause. In this case, according to the records and the original judgment, the court below shall have pride in the fact that the defendant rescinded the execution without any special reason after the execution was completed by the Daegu District Court's provisional injunction as of May 5, 1954 on the part of the teacher employed by the plaintiff. If the defendant does not prove that the application was due to a justifiable cause, it cannot be said that the defendant is obligated to compensate for the plaintiff's damages arising from the execution of the provisional injunction unless the defendant proves that the application was merely due to a justifiable cause. Thus, the court below's rejection of the plaintiff's claim entirely because the defendant's intentional act cannot be acknowledged as a fact at the original time of the plaintiff's assertion.