[1] Whether the right to claim the removal of disturbance by possessory right can be established only if there is a right to justify possession (negative)

[2] Whether the right to exclude disturbance by possessory right or the right to claim prevention of disturbance includes the right to use and benefit from other person's goods (negative)

[1] The right to claim for exclusion of disturbance by possessory right is in de facto control over the article, that is, if there is an act of interference with possessory right, and there is no need to establish a right to justify possession.

[2] Possessory right is "the right to de facto control an article," and does not have the right to use or profit from an article owned by another person from the possessory right. The right to exclude interference with possession or the right to claim prevention of interference with possession does not include the right to remove the risk of interference with or interference with the de facto control of the article, and does not include the right to use or profit from the article owned by another person

[1] Article 205 of the Civil Code / [2] Articles 205 and 206 of the Civil Code

[1] Supreme Court Decision 68Da1416 delivered on June 30, 1970 (No. 19-1, citizen1) / [2] Supreme Court Decision 2003Da11530 Delivered on April 25, 2003

Creditor (Attorney Park Young-young, Counsel for plaintiff-appellant)

debtor corporation

Daegu District Court Order 2006Kahap1101 dated December 18, 2006

1.The decision of the first instance shall be modified as follows:

(a) The debtor shall not engage in any conduct that interferes with the creditor's possession, such as correction of entrance and exit doors, closure of entrance doors, and obstruction of entry, at a store in Daegu-gu (store number omitted) Daegu-ro 41-8 (store number omitted);

B. The remaining claims of creditors are dismissed.

2.1/2 of the total costs of application shall be borne by the obligee, and the remainder by the obligor, respectively.

The decision of the first instance shall be revoked. The debtor shall not engage in any act interfering with the creditor's business, such as correction of entrances, closure of entrance doors, entrance and exit, power failure and fractional suspension, etc., at the Daegu Jung-gu (Sgu number omitted) store in Daegu-gu (Sgu number omitted) Daegu-gu.

1. Basic facts

In light of the overall purport of the examination of the records of this case, the following facts are substantiated.

A. Lease contract on the store of this case between the debtor and the non-applicant 1

(1) The debtor was granted at his own expense a right of free use for a certain period of time against the central underground shopping malls in Daegu-gu, Daegu-gu, as consideration for redevelopment of central underground shopping malls in Daegu-gu, and for donation thereof to Daegu-gu.

(2) The debtor completed redevelopment works around June 20, 2006, and set the name of the commercial building as the Daegu-si store.

(3) The debtor, based on the management and operation rights granted by Daegu Metropolitan City on May 25, 2006, entered into a lease agreement with the non-applicant 1, 2006, setting the deposit amount of 8,3810,000 won, monthly rent of 656,00 won, and the lease term of 65,00 from May 25, 2006 to May 24, 201.

(4) According to the above lease agreement, if a non-applicant 1 sells or subleases the right of lease without the debtor’s approval, the debtor may terminate the lease agreement (Article 7 subparag. 4).

B. The creditor's possession of the instant store

(1) However, on August 7, 2006, the creditor acquired the right of lease from Nonparty 1 to KRW 8,3810,000,00 and paid the price until August 31, 2006, in the name of the non-applicant 2.

(2) After that, around September 2, 2006, the creditor moved 13 paper boxes containing Kameras and accessories to the store of this case.

C. The debtor’s order to correct the entrance of the store of this case and termination of the lease contract with the non-applicant 1

(1) On September 5, 2006, the creditor notified the obligor of the fact that he received the right of lease.

(2) Accordingly, on September 5, 2006, the debtor corrected the entrance door of the instant store, and on September 7, 2006, notified the termination of the said lease on the ground of the transfer of the right of lease to non-applicant 1 without permission, and demanded the delivery of the instant store.

2. Judgment on the creditor's assertion

A. Creditor's assertion

The obligee asserts that, when the Daegu Metropolitan City Facility Management Corporation entrusted the management of the central underground shopping mall, the right of lease is allowed, and the central underground shopping mall is free to transfer the right of lease. The obligor’s termination of the lease contract with the non-applicant 1 on the ground of the transfer of the right of lease and demanded the delivery of the store of this case and the rectification of the entrance is an act infringing the obligee’s right of possession. Thus, the obligor should not engage in any act interfering with the obligee’s business, such as the rectification of the entrance at the store of this case, closure of the entrance, entrance, obstruction of access, suspension of power supply, etc.

(b) Markets:

(1) Legal interest

The right to demand the exclusion of disturbance by possessory right is established in the actual control of the article, that is, if there is an act of interference with possessory right, and it does not require a right to justify possession (see Supreme Court Decision 68Da1416, Jun. 30, 1970). But possessory right is "the right to de facto control the article," and there is no right to use or benefit from the article owned by the possessory right. The right to demand the exclusion of disturbance or the right to demand the prevention of disturbance is the right to remove the risk of interference with the de facto control or interference with the article, and does not include the right to use or benefit from the article owned by others (see Supreme Court Decision 2003Da11530, Apr. 25, 2003).

(2) Part on possessory right

(A) The lease contract between the debtor and the non-applicant 1 is legally terminated by the debtor's notice of termination of the contract on September 7, 2006, which was based on the transfer of the right of lease between the debtor and the non-applicant 1 without permission. However, around September 2, 2006, the creditor commenced possession of the store of this case by transferring 13 paper boxes containing a camera and accessories to the store of this case. Thus, even if the creditor delivers the store of this case to the debtor at the end of the end, the creditor's right of possession should be protected until he delivers the store of this case to the debtor. Therefore, the debtor does not perform any act that interferes with the creditor's possession, such as correction of the entrance, closure of the entrance, obstruction of entry, etc., and therefore, the above part is clearly explained about the right of preservation.

(B) Since the obligor interferes with the obligee’s possession by correcting the entrance of the instant store, there is also the need to preserve the said part of the claim that is urgently prohibited by the obligor’s act.

(3) The portion concerning the use and profit-making

On the other hand, the claim for exclusion of interference with possession or the claim for prevention of interference with possession does not include the right to use or profit from other things owned by the obligee. Thus, the obligee's right to claim exclusion of interference with possession or the claim for prevention of interference with possession cannot be the preserved right of the claim for provisional disposition with the purport that "the obligor shall not engage in any act interfering with the obligee's business, such as power failure and fraction, at the store of this case." Thus, the above claim is without merit.

3. Conclusion

Therefore, the creditor's application for provisional disposition of this case is reasonable within the scope of the above recognition, and it is so decided as per Disposition with the decision of the court of first instance as stated in Paragraph 1.

Judges Kim Su-chul (Presiding Judge)