[1] In a case where the transferee of the status of the buyer of the store designated by the type of business in a commercial building violates the agreement on the restriction of the type of business as stipulated in the sales contract, whether a person whose business interest is at risk of being infringed has the right to claim the prohibition of the same type of business (affirmative)

[2] Whether to independently examine the right to be preserved and the need for preservation in a preservative measure (affirmative)

[3] The case holding that there is no urgent need for a provisional disposition setting forth a temporary position where a situation to be removed from a preservative measure has been occupied for a long time by the creditor

[1] In general, it is reasonable to view that a building company, etc. constructed a commercial building to designate a type of business for each shop and sell the position of a buyer for each shop, barring any special circumstance, the transferee agreed to assume the duty of mutually and implicitly agreed to restrict the type of business under the agreement in the sales contract in relation to the tenant of the commercial building, barring any special circumstance. Therefore, a person whose business interest is infringed due to the violation of the agreement on the restriction on type of business has the right to claim the

[2] In all preservative measures, the existence of the right to be preserved and the need for preservation should be explained. This two requirements should be deliberated independently regardless of the trade name, as they are separate and independent requirements.

[3] The case holding that there is no need to obtain a provisional disposition setting forth a provisional status, such as the fact that the situation to be removed from the provisional disposition is no longer likely to cause significant damage to the applicant only if the applicant is still neglected to take any measures for a long time with the knowledge of the respondent's violation of the business sector restriction agreement, on the ground that it is difficult to obtain a provisional disposition, and that if the applicant has been neglected to take any measures for a long time with the knowledge of the respondent's

[1] Article 105 of the Civil Act, Article 300 of the Civil Execution Act / [2] Articles 277 and 300 of the Civil Execution Act / [3] Article 300 (2) of the Civil Execution Act

[1] Supreme Court Decision 97Da42540 decided Dec. 26, 1997 (Gong1998Sang, 501) Supreme Court Decision 2001Da46044 decided Aug. 23, 2002 (Gong2002Ha, 2191) Supreme Court Decision 2002Da45284 decided Dec. 27, 2002 (Gong2003Sang, 506)

[Judgment of the court below]

Other than 1 et al.

Seoul High Court Order 2002Ra392 dated January 17, 2003

The reappeal shall be dismissed. The costs of the reappeal shall be borne by the petitioner.

The grounds of reappeal are examined.

After compiling the selected evidence, the court below acknowledged the facts as stated in its holding. Generally, it is reasonable to view that the building company, etc. constructed a commercial building and sold the position of the purchaser after designating the type of business for each shop, barring any special circumstance, that the purchaser of the same kind of business has consented to the duty of restrictions on the type of business agreed in the sales contract in the mutual relation to the occupant of the commercial building. Thus, a person whose business interest is infringed due to the violation of the restriction on the type of business has the right to claim the prohibition of the same type of business to exclude the infringement (see Supreme Court Decisions 97Da42540, Dec. 26, 1997; 2001Da46044, Aug. 23, 2002). The applicant's right to preserve the commercial building was not recognized, but the applicant's right to request the preservation of the same type of business from 97Da1994, which had been presented within the order of prohibition of the sale of the commercial building in this case.

In all false preservative measures, it is necessary to vindicate the existence of the right to be preserved and the necessity for preservation. This two requirements are separate requirements, and thus, regardless of the trade name, the examination must be independently conducted. Thus, in the case of an application for provisional injunction seeking prohibition of the same kind of business, if the right to be preserved is recognized, the need for preservation should be recognized as a matter of course. Under the premise that the court below's decision that there is no need for preservation, and that there is no violation of the law regarding the recognition of the necessity for the preservation of provisional injunction or violation of the law in the light of the reasoning, it cannot be accepted merely because it

Furthermore, the provisional disposition seeking the prohibition of the same kind of business as in this case is a kind of provisional disposition which determines the temporary status as stipulated in Article 300(2) of the Civil Execution Act. In particular, such provisional disposition is allowed as an emergency or provisional disposition only when the disputed legal relation is in violation of the agreement on the restriction of the type of business and has any other necessary reasons to avoid the present significant damage or prevent the imminent spread of the disputed legal relation until it becomes final and conclusive by the lawsuit on the merits. Thus, even if the creditor is satisfied before the judgment on the merits is rendered, the necessity of recognition should be careful. Furthermore, if the situation where the preservative measure should be removed by the creditor is long time due to the creditor, it is difficult to recognize the need to seek the preservative measure. As recognized by the court below in this case, if the applicant (or the former tenant) has left the applicant without taking any measure for the same kind of business for 7 years and 6 months and 26 months, it is difficult to see that there exists a considerable need to preserve the present situation of the provisional disposition as in this case, and there exists no particular need to present situation.

Therefore, in the application for provisional disposition of this case, the existence of the right to preserve was substantiated, but the court below's decision that maintained the first instance court's decision dismissing the application on the ground that the existence of the necessity for preservation was not clearly explained is just and acceptable. Therefore, the reappeal of this case is dismissed and the costs of reappeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)