[가처분이의][공2003.12.1.(191),2253]
Whether the existence of the effectiveness of the decision of indirect compulsory performance and the existence of the validity of the decision of indirect compulsory performance should be considered in determining the necessity of preserving the decision of provisional disposition (negative)
Indirect compulsory performance is an enforcement method with the objective of inducing the performance of an obligation to be exempted by notifying a sanction against nonperformance, and the decision of indirect compulsory performance is merely a method of executing a provisional disposition. Furthermore, even if an obligee acquired a claim for compensation determined by an indirect compulsory performance decision due to an obligor’s breach of duty, and furthermore, even if the obligee went to enforce a compulsory execution procedure for the claim for compensation, such circumstance alone does not lead to the need to preserve the right to be preserved in the application for provisional disposition, which is a claim for prevention of disturbance based on the right to possession against the store, or a claim for prevention of disturbance, or the continuation of the decision of provisional disposition. The existence of the validity of the decision of indirect compulsory performance does not need to be considered in
Articles 261 and 300 of the Civil Execution Act
Creditors
Debtor 1 and one other (Attorney Kim Yong-hoon, Counsel for the defendant-appellant)
Seoul High Court Decision 2003Na11921 delivered on July 4, 2003
All appeals are dismissed. The costs of appeal are assessed against the obligee.
We examine the grounds of appeal.
1. Regarding ground of appeal No. 1
The objective of indirect compulsory performance is to give motive to perform the obligation by notifying the sanction against nonperformance. The decision of indirect compulsory performance is merely a method of executing the provisional disposition of this case, and the decision of indirect compulsory performance of this case is merely a method of executing the provisional disposition of this case. Furthermore, even if the creditor acquired the claim for compensation under the decision of indirect compulsory performance of this case due to the debtor's breach of duty, and further took the procedure of compulsory execution of the claim for compensation, such circumstance alone alone does not lead to the necessity of preserving the right to be preserved in the application for provisional disposition of this case, which is the right to claim for prevention of disturbance or the right to claim for prevention of disturbance against the store of this case, or the continuation of the decision of provisional disposition of this case shall not be considered in determining the necessity of the preservation of this case.
Although this part of the reasoning of the court below is somewhat insufficient, the creditor acquired the claim for compensation against the debtor due to the creditor's breach of duty as the executive title of the provisional disposition order of this case, and then the creditor acquired the claim for compensation against the debtor. In order to enforce the claim for compensation, the provisional disposition order of this case should be maintained, and even if the construction work of this case has been completed at present, there is still a need to preserve it." Thus, it is legitimate in the conclusion of rejecting the creditor's assertion that the provisional disposition of this case should be completed, and it is not erroneous in the misapprehension of legal principles as
2. Regarding ground of appeal No. 2
According to the reasoning of the judgment below, the court below determined that the application for provisional disposition of this case is no longer necessary because there is no evidence to acknowledge the circumstance that the debtor does not interfere with the exercise of the creditor's right of possession, and the creditor is likely to interfere with the exercise of the creditor's right of possession due to the debtor's construction in the future. In light of the records, the related evidence is not erroneous in the misapprehension of legal principles as to the right to be preserved for provisional disposition of this case and the necessity for preservation as otherwise alleged in the ground of appeal.
3. Conclusion
Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Shin-chul (Presiding Justice)