In a case where Gap corporation established, managed, and operated airfields, and Eul corporation entered into a construction contract with Byung corporation to operate a wind power plant in the vicinity of the airfield and sought a provisional injunction against Eul corporation claiming that Eul corporation could not use the airfield for its original purpose due to threats to the safety in the operation of aircraft using airfields, the case holding that it is difficult to view such interference to exceed the generally accepted level in light of all the circumstances, such as the current status and purpose of the use of the airfield and the degree of restriction on the operation of the airfield due to the installation of a wind power plant, in light of all the circumstances such as the current status of the use of the airfield and its use, and the degree of restriction on the operation of the airfield due to the installation of a wind power plant.

The purpose of domestic and foreign air transportation business was to install, manage, and operate airfields. However, as Company B entered into a construction contract with Company C to operate a wind power plant in the vicinity of the airfield and carried out installation work of wind power generation structure, Company A filed a provisional injunction against Company C by asserting that it would not be used for its original purpose as a threat to safety in the operation of aircraft using airfield due to a wind power generation device to be installed as the above construction project against Company C, and that it would not be used for its original purpose.

When a wind power plant is completed, if it obstructs the full utilization of the airfield as its original purpose and such interference exceeds the generally accepted level (hereinafter referred to as “limit”), the company A may file a claim for the removal or prevention of interference with the ownership of the airfield. An airfield of Company A is used only for the east visual flight transport station of the original runway (hereinafter referred to as “heading station”). Even if wind power generation is completed, it is possible to operate the airfield using the same heading station as the previous one; an airfield using the airfield is mainly a small-sized aircraft of class A using the airfield; even if a wind power plant restricts the operation of the procedure to immediately enter a certain section, it appears that the scope of restriction on the utilization of the airfield seems not to be significant as a whole, and since it is mainly used for training flight, it is difficult to view that Company A can substantially control over the part of the airfield, and in light of the fact that the distance between each land and each airfield, the reasonable and efficient use of the airfield, the development project and its progress beyond the acceptable limit.

Article 214 of the Civil Act, Article 300 of the Civil Execution Act

Korea Air Co., Ltd. (Law Firm Squa, Attorneys Lee Hun-hwan et al., Counsel for defendant-appellant

Suwon wind Co., Ltd. and one other (Law Firm BelS et al., Counsel for the plaintiff-appellant)

Jeju District Court Order 2018Kahap10270 dated February 21, 2019

1. The appeal of this case is dismissed.

2. Costs of appeal shall be borne by the creditor.

The decision of the first instance court shall be revoked. The debtor shall not proceed with the installation works for wind power generation structures on each land listed in the separate sheet (hereinafter referred to as "each land of this case"). The execution officer shall publicly notify the purport of the above order in an appropriate manner. If the debtor violates the above order, the execution officer shall pay to the creditor 50,000,000 per day of the violation.

1. Basic facts

The following facts may be acknowledged in full view of the records and the overall purport of the examination of the case.

A. The creditor owns 836,351 square meters in Seopo-si ( Address omitted) and from 1983, the creditor installed, managed, and operated an airfield on the ground (hereinafter “instant airfield”) pursuant to Article 75, etc. of the former Aviation Act (amended by the Airport Act and the Aviation Safety Act (amended by Act No. 14113 and 1416, Mar. 29, 2016) (amended by Act No. 14116, Mar. 30, 2017; hereinafter the same) from around 1983.

B. The debtor water network wind Co., Ltd. (hereinafter “debtor water network wind”) filed an application with Jeju Special Self-Governing Province for permission for electric power generation and approval for implementation to operate wind power plants on each of the instant land located far from the airfield in the southwest direction. The Jeju Special Self-Governing Province Governor approved the agreement with the related agencies and departments, including the opinions of the Jeju Regional Aviation Authority, to the effect that “The consultation with the creditors, who are airport installers, is likely to interfere with the flight safety of aircraft, as prescribed by Article 246-2(2) of the former Enforcement Rule of the Aviation Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 410, Mar. 30, 2017)” on October 17, 2016.

C. Around December 6, 2016, a creditor sent a document requesting the Jeju Special Self-Governing Province Governor to proceed with the procedure to make the above agreement possible within a prompt time. However, on April 11, 2017, the Jeju Special Self-Governing Province Governor respondeded that the creditor did not have a duty to consult with the creditor because the provisions related to the former Aviation Act apply only to public airfields.

D. On March 28, 2018, wind power on the debtor’s water network concluded a contract for construction works for wind power plants (hereinafter “instant construction”) with the debtor company, Hanhwa Construction Co., Ltd. (hereinafter “debtor Hanhwa Construction”) and the non-applicant 1 (name “○○○○○”).

E. On June 28, 2018, Jeju Special Self-Governing Province Governor reported the authorization of a wind power plant construction plan and the commencement of a development project in Jeju Special Self-Governing Province.

2. Determination

A. Summary of creditor's assertion

As wind power generation devices to be installed by the construction of this case threaten the operation safety of aircraft using the airfield of this case, the obligee cannot use the airfield of this case for its original purpose. The installation of wind power generation devices constitutes an act of interference with the Plaintiff’s ownership, such as the Plaintiff’s land, and thus, the obligee sought provisional disposition such as the purport of the application to preserve the claim of interference exclusion and prevention based on ownership.

B. Determination

(5) According to the purport of the record and examination of the case, a creditor is a company operating the airfield of this case, and uses it mainly for the training of flight personnel at △△ University, such as flight training. ② Aircraft using the airfield of this case in accordance with the above characteristics shall be classified as ice, 172 Scarhead (C172), and in the case of a public aircraft, as the aircraft classification method according to the rate of landing at 50, it shall be classified as A, C, and D, and an aircraft of this case shall be classified as a small-sized aircraft of class A and most general passenger aircraft of class C, and an aircraft of approximately 85% of the traffic volume of the airfield at 608, which shall be considered as the height of the surface of the airfield as an obstacle to the 6th direction of the 6th direction of the 6th direction of the 6th direction of the 6th direction of the airfield. It shall be considered that the 6th direction of the 6th direction of the 6th direction of the airfield.

Furthermore, with respect to whether the above interference goes beyond the tolerance limit under the social norms, all circumstances such as the nature and degree of damage, the public nature and social value of the damaged interest, the attitude of the harmful act, the public nature and social value of the harmful act, the public nature and social value of the harmful act, the public regulation and authorization relationship under the public law, the regionality, and the prior relation to land use should be comprehensively considered.

In light of the above-mentioned facts and the overall purport of the record and examination, ① the airfield was used only for the east State of the original runway, and the west State was established only for the approaching State Aircraft, and its use was prohibited. After the approval of the development project of this case, the west State was granted on August 31, 2017, and the west State shares were established for the aircraft with the passage of the access State B and C. Even after the completion of the structure of this case, the obligee can operate the airfield by using the same main state (the obligee can not be seen as the △△△△△ University’s obligee’s right to use the airfield as well as the △△△△ University’s right to use the airfield as the △△△△ University’s right to use the airfield as a whole, even if the training conducted by the △△△△△△ University’s △△△△△△△△△ was not sufficient to recognize the use limit of the airfield as its use level by the obligee’s right to use the airfield as a whole.

C. Sub-committee

Therefore, the application of this case is insufficient to vindicate the right to be preserved.

3. Conclusion

Therefore, the motion of this case is dismissed as it is without merit, and the decision of the court of first instance is just, and the creditor's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] List: omitted

Judges Lee Jae-hoon (Presiding Judge)