[1] Whether the execution of a provisional disposition prohibiting the disposal of real estate and the recognition of proximate causal relation between the delay in disposal of the real estate in question (affirmative with qualification)

[2] In a case where the disposal of the object of provisional disposition is delayed due to the execution of an unfair provisional disposition prohibiting the disposal of the object of provisional disposition, whether such damage has occurred (negative with qualification)

[3] The case holding that in case where the disposal of a newly built apartment house for the purpose of sale is delayed due to the execution of an unfair provisional disposition prohibiting disposal, the legal interest equivalent to the disposal price shall be ordinary damages

[1] In a case where a provisional disposition on real estate has been executed, the effect of the prohibition of disposal is only the relative effect, so even if the disposal of the real estate becomes legally impossible, the person who intends to purchase the real estate must bear the risk that it might be difficult to predict the ownership of the real estate. Thus, barring any special circumstance, there is a possibility that the provisional disposition on real estate would be extremely difficult to dispose of the real estate due to the execution of the provisional disposition. Thus, the provisional disposition on real estate was executed during the continuous period of the execution of the provisional disposition. Furthermore, if it is proved that the possibility that the disposal of the real estate was not possible due to the execution of the provisional disposition, in light of the transaction situation of the surrounding real estate, etc., there is a proximate causal relation between the provisional disposition on real estate and the delay in disposal of the real estate in question, unless the applicant asserts and proves otherwise by the provisional disposition.

[2] The applicant for provisional disposition shall be held liable for damages if the disposal of the object of provisional disposition is delayed due to the execution of an unfair provisional disposition, and if the owner of the real estate uses or benefits from the real estate at the time of the execution of provisional disposition, even if the disposal of the real estate is delayed, damages due to the delay in realization of the real estate can be deemed as being offset with the profits due to the continuous use or profit-making of the real estate, and thus there is no damages due to the delay in disposal of the real estate. If the damages due to the delay in realization of the real estate exceed the profits from the continuous use

[3] The case holding that, in case where land was purchased for the purpose of selling in lots and newly constructed a row house, but the disposal was delayed due to the prohibition of unfair disposal, it is difficult to view that there was an economic benefit to offset the losses incurred to delay in disposal by using and making profits from the real estate during that period, barring any special circumstance, and therefore, at least the amount equivalent to the interest calculated at the statutory rate on the disposal price of real estate during the period delayed in disposal due to the execution

[1] Articles 393 and 750 of the Civil Act, Article 714 of the Civil Procedure Act / [2] Articles 393 and 750 of the Civil Act, Article 714 of the Civil Procedure Act / [3] Articles 393 and 750 of the Civil Act, Article 714 of the Civil Procedure Act

[2] Supreme Court Decision 98Da21366 delivered on September 22, 1998 (Gong1998Ha, 2558), Supreme Court Decision 2000Da58132 delivered on January 19, 2001 (Gong2001Sang, 525)

Plaintiff 1 and two others (Attorney Park Jong-sik, Counsel for the plaintiff-appellant)

Defendant (Attorney Go Young-young et al., Counsel for defendant-appellant)

Seoul High Court Decision 2000Na59885 delivered on April 18, 2001

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. The facts duly admitted by the court below are as follows.

A. The plaintiffs purchased the land of Yongsan-gu Seoul Metropolitan Government (No. 1 omitted) and (No. 2 omitted) for the purpose of sale in lots, and newly constructed the 19 households of tenement houses on that ground, and completed registration of preservation of ownership of the plaintiffs' joint ownership on March 11, 1998.

B. On July 23, 1998, the defendant filed a provisional injunction against the plaintiffs against the 8-households listed in the attached Form of the judgment of the court below among the above rows (hereinafter "real estate of this case"). On July 29, 1998, the Seoul District Court issued a provisional injunction against the disposal of the real estate of this case by 98Kahap2495 on July 29, 1998, and the provisional injunction registration was completed on July 30, 1998.

C. After that, the judgment against the defendant in the lawsuit on the merits became final and conclusive, and each of the registrations of provisional dispositions on the real estate of the defendant was cancelled on March 2, 2000 as the plaintiffs won the lawsuit on the objection against provisional disposition.

2. The plaintiffs asserted that if they sold the real estate in lots, they would have been able to repay the loans owed by financial institutions secured by the above land-backed financial institutions and recover the amount invested separately by the plaintiffs to purchase the above land from the prop in order to acquire the above land, and that due to the defendant's improper provisional disposition prohibition execution, they could not sell the real estate of this case, they incurred losses in continuing disbursement of interest on the loans of financial institutions and collection of separate investment amount. The plaintiffs primarily seek compensation for the interest paid to financial institutions during the period of provisional disposition execution and the interest equivalent to the interest calculated at the statutory rate on the separate investment amount paid by the plaintiffs as the land price. In addition, they seek compensation equivalent to the interest calculated at the statutory rate on the

The court below dismissed the plaintiffs' claim on the ground that the defendant received a provisional disposition against the plaintiffs to prohibit disposal of the real estate in this case, and completed the provisional disposition registration, but lost the lawsuit in this case. However, there is no evidence to prove that the execution of the provisional disposition was impossible to dispose of the real estate in this case only due to the execution of the provisional disposition, and that financial costs damages due to the failure to dispose of the real estate in this case due to the execution of the provisional disposition would be liable for damages only if the defendant knew or could have known of such damages due to the special circumstance.

3. However, we cannot agree with the judgment of the court below.

A. In a case where a provisional disposition on real estate has been executed, the effect of the prohibition of disposal is only the relative effect, so even if the disposal of the real estate is not legally impossible, the person who intends to purchase the real estate must bear the risk that it may prevent the acquisition of ownership of the real estate. Therefore, barring any special circumstance, there is a probable probability that the disposal of the real estate may be extremely difficult due to the execution of the provisional disposition. Therefore, if it is proved that there was a provisional disposition on certain real estate, the execution of the provisional disposition was carried out during the continuous period of the execution of the provisional disposition, and the possibility that the disposal of the real estate was not carried out in light of the transaction situation of the surrounding real estate, etc., the fact that the delay in disposal of the real estate was caused by other circumstances not attributable to the applicant of the provisional disposition, such as the situation other than the execution of the provisional disposition, there is a proximate causal relation between the provisional disposition and the delay in disposal of the real estate in question.

In this case where the plaintiffs asserted that the plaintiffs suffered losses equivalent to financial expenses due to delay in selling the real estate in lots due to the execution of the provisional injunction by the defendant, the priority issue is not whether the execution by the defendant of the provisional injunction in this case was legally impossible due to the execution by the defendant of the provisional injunction in this case, but whether the execution by the defendant of the provisional injunction in this case was delayed in disposing of the real estate in this case by acting as a disability that substantially makes it difficult to dispose of the real estate in this case. Nevertheless, the court below did not decide that there was no evidence to prove that the disposal of the real estate in this case was impossible only due to the execution by the defendant of the provisional injunction in this case, and did not decide that the execution by the defendant of the provisional injunction in this case was delayed in disposing of the real estate in this case due to a disability that substantially makes it difficult to dispose of the real estate in this case.

B. In a case where the disposal of the object of the provisional disposition is delayed due to the execution of an unfair provisional disposition, the applicant for the provisional disposition is liable to compensate for the damages caused by the owner.

However, in cases where the owner of a real estate uses or profits from the real estate at the time of the execution of a provisional disposition, even if the disposal of the real estate was delayed, damage due to delay in realization of the real estate can be deemed as being offset by the profit from continuing use or profit-making of the real estate and resulting in delay in disposal of the real estate. If the damage resulting from delay in realization of the real estate exceeds the profit from continuing use or profit-making of the real estate, it may be deemed as a special damage (see Supreme Court Decision 2000Da58132, Jan. 19, 200

However, in the case of this case, since the plaintiffs purchased the land for the purpose of selling in lots and newly built the portion of 19 households of tenement house, it is difficult to view that the disposal of the real estate of this case, which is 8 households of this case, was delayed due to the provisional disposition prohibiting disposal of this case, barring any special circumstance, it could have been able to obtain economic benefits to offset damages for delay of disposal by using and making profits from the real estate of this case during that period, barring any special circumstance. As long as proximate causal relation exists between the execution of provisional disposition of this case and the delay of disposal of the real estate of this case by the plaintiffs, at least the amount equivalent to the interest accrued from

Nevertheless, the court below erred in the misapprehension of legal principles as to the scope of compensation for damages, since the court below judged the plaintiff's conjunctive damage as the special damage under the plaintiff's conjunctive damage and dismissed all of the plaintiff's claim. The ground of appeal pointing this out is justified.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)