[광구입입금지가처분][집12(2)민,156]
If cancellation of the mining right is requested in the lawsuit on the merits, whether provisional disposition prohibiting entry into the mining area located in the court on the merits is appropriate for the execution and preservation of the right.
The provisional disposition on the dispute shall not exceed the scope of the compulsory execution of the judgment on the merits. Therefore, the court below erred in its decision that the court below dealt with the provisional disposition on the merits, despite that the provisional disposition on the dispute exceeds the scope of the compulsory execution of the judgment on the merits, seeking a cancellation of the registration of transfer of mining rights on the mining area due to the lawsuit on the merits and seeking a prohibition of access to the mining area due to the provisional disposition on the dispute.
Article 714(1) of the Civil Procedure Act
Book of Binding
Kim Jong-ray
Gwangju District Court Decision 64Ka5 delivered on March 25, 1964
The original judgment shall be reversed and the judgment
The case is remanded to the Gwangju High Court.
The grounds of appeal 3-B by the respondent's representative are examined.
Since the court below rendered a judgment in the position of the court where the lawsuit on the application for provisional disposition was pending in the case of this case, it is clear that the applicant for this case becomes the plaintiff and the respondent as the defendant, and the defendant on September 21, 1961 as the purport of the claim is an action seeking the cancellation of the registration on the transfer of mining rights under the joint name of the defendant on September 21, 1961.
However, the provisional disposition for the object in dispute originally cannot be executed or is likely to be considerably difficult in executing the right, and it is a preservative measure to not change the current state for preserving the execution of the right. Thus, it cannot be done beyond the scope of compulsory execution of the original decision. Thus, in the case above, unless the applicant simply seeks cancellation of the mining right against the respondent, the applicant does not expand within the original decision such as seeking the exclusion of interference with the exercise of his/her mining right, etc. in the original decision, the application for provisional disposition has exceeded the scope of execution of the original decision. Therefore, the application for provisional disposition cannot be considered as the main case of the case in this case. Therefore, the application for provisional disposition should not be treated as the main case in this case, and therefore, it is reasonable for the court below to discuss the appeal on this point because it has been wrong for the court below to have dealt with the case in this case as the original decision, and the original decision shall not be reversed without the reversal of the decision on the grounds for appeal for provisional disposition.
Therefore, in order to make the original judgment again, it is so decided as per Disposition by the assent of all participating judges.
Justices of the Supreme Court (Presiding Judge) Kimchi-ba (Presiding Judge)