[2] In a case where a provisional disposition against disposal was executed unfairly to preserve the right to claim for registration of real estate, whether such damage has occurred (negative with qualification)

[2] Even if a provisional disposition against disposal in order to preserve the right to claim the registration of real estate was executed unfairly, such provisional disposition has relative effects on the prohibition of disposal, and even after its execution, an obligor still continues to use and profit from the pertinent real estate and can dispose of it. Thus, even though the existence of such provisional disposition loses an opportunity to dispose of the real estate or suffered disadvantage from which the price was not paid from time to time, it is difficult to view that the damage was caused unless it does not exceed the occupation profit gained while holding the pertinent real estate. Even if the damage was caused by a disadvantage exceeding the occupation profit of a snow company, the damage should be held liable only when the provisional disposition obligee knew or could have known such circumstance.

1. As to the Plaintiff’s ground of appeal Nos. 1, 2, and 3-b

Examining the reasoning of the judgment below in light of the records, we affirm the fact-finding and judgment of the court below concerning the plaintiff's claim for restitution of unjust enrichment, claim for damages due to default, and claim for consolation money due to tort, and there is no error of law such as misconception of facts, misapprehension of legal principles

2. As to the plaintiff's ground of appeal No. 3's additional points and the defendants' grounds of appeal

A. The summary of the judgment of the court below concerning the claim for damages against property by tort

According to the reasoning of the judgment of the court below, the above plaintiffs were jointly and severally liable for damages of 90 m20 m2 and 94 m20 m2. 9 m2 and 97 m2. 9 m2. 9 m2. 9 m2. 9 m2 and 9 m2. 9 m2. 9 m2 were jointly and severally liable for damages of 9 m20 m2. 9 m2 and 9 m2. 9 m2. 9 m2. 9 m2. 9 m2. 9 m2. 9 m2. 9 m2. 9 m2. 9 m2. 9 m2. 9 m2. 9 m2. 9 m2. 9 m2. 9 m2. 3 m2. 195 m2. 9 m2.

B. Judgment on additional points in the Plaintiff’s ground of appeal No. 3

Article 3 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Special Cases Concerning the Promotion, etc.”) is a special rule with respect to statutory interest rate which serves as the basis for calculating the amount of damages due to the default of monetary obligations in cases where a judgment ordering the performance of all or part of monetary liabilities is rendered. Therefore, in calculating the amount of damages due to a wrongful provisional disposition on real estate, the above special rule cannot be applied. Therefore, in calculating the amount of damages, it is clear that the above special rule is not 5% per annum under the Civil Act, but 25

C. Judgment on the Defendants’ grounds of appeal

Even if a provisional disposition against disposal in order to preserve a right to claim registration of real estate was executed unfairly, such provisional disposition has relative effects on the prohibition of disposal, and even after its execution, an obligor still continues to use and profit from the real estate in question and can dispose of it. Thus, even if the existence of such provisional disposition has lost an opportunity to dispose of the real estate or failed to receive the price from time to time, it is difficult to deem that such provisional disposition did not exceed the occupation profit gained while holding the real estate concerned. Even if losses were incurred due to a disadvantage exceeding the occupation profit of the real estate, such losses are damages arising from special circumstances and shall be liable only when the provisional disposition obligee knew or could have known such circumstance (see Supreme Court Decision 98Da21366, Sept. 22, 1998).

According to the records, after the execution of the above provisional disposition was terminated on September 14, 199, it is recognized that the above ( Address 4 omitted) had been acquired through consultation from the plaintiff on September 14, 199, and so, the plaintiff was in a position to use and profit from the above land prior to the acquisition through consultation. In light of the above legal principles, even if the plaintiff was in a position to receive the above compensation by consultation until May 31, 1996, it cannot be said that there was an ordinary damage equivalent to the above compensation due to the civil legal interest in the above compensation for the period until the execution of the above provisional disposition was terminated. If the amount equivalent to the above compensation exceeds the interest in occupation and use of the above land, the court below should have deliberated on whether the defendants knew or could have known such circumstance, but the court below erred in the misapprehension of legal principles as to the prohibition of execution of the above provisional disposition as a civil law and the above amount equivalent to the above compensation due to an unlawful execution of the provisional disposition.

3. Therefore, the part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal against the Defendants is all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)