Whether it constitutes a self-help in the event that he/she immediately recovers possession of B with his/her own means as a result of the suspension of order against C/S on the part of C/S.

In a case where Party B entered into a lease contract with Party B and completed the execution of surrender with Party B on the basis of the judgment on the merits that was rendered against Party B after Party B had been subject to the provisional disposition against Party C on the prohibition of possession and transfer of the said store, and Party B had lawfully occupied the said store, the execution of surrender to Party B, which was not effective in the provisional disposition or the judgment on the merits, is unlawful, and it is against Party B’s possession by means of such unlawful compulsory execution. Thus, Party B’s failure to perform the above compulsory execution within two hours after Party B’s completion, is an exercise of the right to self-help by the possessor of the Civil Act.

Article 209 of the Civil Act

Attorney Yang Chang-soo, Counsel for defendant-appellant

Respondent

Seoul High Court Decision 85Na3644 decided June 25, 1986

The appeal is dismissed.

The costs of appeal shall be assessed against the petitioner.

We examine the grounds of appeal.

In light of the judgment below, the court below found that the applicant entered into a lease contract with the owner of the store of this case and occupied the store of this case on May 1, 1983 and did not receive the succession of possession from the person other than the above applicant on September 8, 1983, and enforced the provisional disposition against the above applicant on September 8, 1983 (Seoul-Support 84Ga10746) and the judgment against the above applicant on July 14, 1985 (Seoul-Support 84Ga1856). However, the respondent could not obtain the above provisional disposition or provisional disposition as to the non-applicant's possession and enforcement of the building of this case as to the non-applicant's possession and enforcement of the non-party's possession. However, it cannot be viewed that the respondent's possession and enforcement of the real estate of this case cannot be viewed as an unlawful enforcement due to the above non-party's self-help and it cannot be viewed as an unlawful enforcement based on its own self-help.

In addition, the court below held that the application of this case is groundless since it cannot be deemed that the applicant acquired an established possession that can be protected against the store of this case due to the above execution of the lusence, and therefore, it cannot be deemed that the applicant obtained an occupation that could be protected in light of the circumstances stated in its holding (in terms of necessity of preservation), and it also shows that the applicant lost possession by withdrawing possession by self-help of the respondent immediately after the above lusence execution and that the right to claim restitution of possession is not recognized in light of the legal principles that the applicant is not allowed to obtain the right to claim restitution of possession, and therefore, the decision of the court below rejecting the application of this case is just in its conclusion, and that the court below erred in the misapprehension of the purport of the judgment below as to the right to claim restitution of possession by violating Article 208 (2) of the Civil Code, and therefore, it cannot be accepted.

Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Yoon-hee (Presiding Justice)