Whether a provisional disposition for the abolition or alteration of the contents of the provisional disposition or the removal of the execution after the provisional disposition for the prohibition of interference is legitimate (negative)

The first provisional disposition ordering the prohibition of interference with a certain act does not merely mean that the other party orders the prohibition of a certain act of interference, but it is based on the premise that the other party should temporarily accept or reduce the application of a certain act by the person who applied for a provisional disposition. Thus, the applicant for a provisional disposition shall be deemed to have been issued including such content. As such, the applicant for a provisional disposition shall be temporarily granted from the other party the legal status that can conduct a certain act without being obstructed by a provisional disposition which is not only by the real force but also by the legal means, and at least by the same party, if it is deemed that the subsequent provisional disposition aims at the abolition or modification of the contents of the prior provisional disposition order or the removal of its execution, it shall be deemed that the subsequent provisional disposition is unlawful

Article 714(1) of the Civil Procedure Act

Ilsung Development Co., Ltd. (Attorney Choi Jae-ho, Counsel for the plaintiff-appellant)

Defendant 1 and 2 others (Law Firm, Kim & Lee, Attorneys Lee Jae-sik et al., Counsel for the defendant-appellant)

Daegu District Court Decision 95Gahap141 delivered on November 17, 1995

1. The judgment of the court below is revoked.

2. The applicant shall be dismissed;

3. The petitioner's appeal is dismissed.

4. The costs of the lawsuit shall be borne by the applicant through the first and second trials.

The respondent's possession of each real estate stated in the attached list of the respondent shall be released, and the head of the office entrusted by the applicant shall be ordered to keep it in custody. The head of the office shall transfer the construction site to the applicant and have the applicant continue the construction of the above real estate. The respondent shall not interfere with the acts of construction performed by the applicant or the building company entrusted by the applicant. The chief of the office shall take appropriate measures to publicly announce the above purport.

Claimant: The same shall apply to the purport of the petition except for deletion of the phrase "to deposit 2,00,000,000 won with the respondent's guarantee" in the judgment of the lower court.

Respondent: The same shall apply to orders.

1. Basic facts;

The following facts are no dispute between the parties, or evidence of Nos. 1, 2, 3-1 through 3, evidence Nos. 5-1, 2, evidence Nos. 6-1, 2, evidence Nos. 7-2, evidence Nos. 8-1, 2, 5, 7, evidence Nos. 9-1, 2, evidence Nos. 11-1 through 7, evidence Nos. 12-1 through 9, evidence Nos. 13-1 through 7, evidence Nos. 14-1 through 21, evidence Nos. 15-1 through 6, evidence Nos. 222-1 through 4, evidence Nos. 15-1, evidence Nos. 513 through 3, evidence Nos. 93, evidence Nos. 13-1, evidence Nos. 14-1 through 6, evidence Nos. 15-1 through 4, evidence Nos. 51, and evidence No. 23 of the court below.

A. On February 27, 1991, Pungsung Co., Ltd., other than the applicant, purchased a large of 3,413 square meters and a large of 1,322 square meters and a large of 253 square meters and a large of 253 square meters and a large of 1,650,000,000 won and a total of 18,150,000,000,000 won, including the construction cost of the construction cost of the construction work of the three underground floors, the sales facilities of the 7th floor, the neighborhood living facilities and the sports facilities, and the building height of 41.46 square meters in the attached list (hereinafter “the instant building”).

B. Upon entering into the above contract, the non-applicant company and the respondent agreed to pay the construction period from February 28, 191 to October 31, 1992, the warranty bond rate is 2%, the warranty bond rate is l/l,00 days, and the payment method is l/l,00 days, and the progress payment amount calculated through the inspection of the completed portion, on nine occasions, and if the construction price is delayed, the interest in arrears at the interest rate in a commercial bank from the date following the due date to the due date

C. On January 1, 1991, prior to the conclusion of the above contract, the company other than the applicant company sold 313 of the 372 stores to the general public, and received 18,200,000,000 won in total from 304 buyers.

D. However, when the respondent requested the non-applicant company to pay the construction cost according to the nature of the construction contract of this case, the non-applicant company set up a mortgage of 5,00,000 won with respect to the site where the building of this case was located on June 23, 1992, and paid a total of 8,333,309,360 won to the respondent as part of the construction cost, including value added tax, and refused to pay the remainder of the construction cost on the ground of the reasons, such as that there are many defects in the building of this case, and the respondent requested the payment of the construction cost of this case until the time of July 1, 1992 and suspended the construction work of this case. Moreover, on September 2, 1992, the construction work of this case was completely interrupted due to the non-applicant company's default.

E. Since the construction of this case was suspended for a long time and the construction of this case was not carried out, the buyers of the above Pungsung shopping mall did not directly pay KRW 800,000,000 in total to the respondent four times until the completion of construction work according to the progress of the construction work, and the respondent agreed to pay KRW 800,000,000 in total to the respondent on November 3, 1993, while the non-applicant and the respondent made efforts to resume the construction work among the non-applicant and the respondent, the company other than the applicant transferred 39 stores unsold in lots to the respondent, and the respondent resumed the construction of this case around November 3, 1993.

F. However, the respondent does not pay the construction cost under the above construction resumption agreement, on the ground that the respondent does not normally perform the construction work, and that there are many defects in the building in the building of this case, and the respondent has been demanding the payment of each other's construction cost and the normal progress of construction and repair of defects on several occasions, and the respondent has again notified the suspension of the construction of this case on or around October 9, 1994. On the contrary, the non-applicant company notified the respondent of the termination of the contract of this case on or around November 7, 1994, and the Corporation has not run so far since it notified the respondent of the termination of the contract of this case.

G. On January 11, 1995, the Committee for Countermeasures against Sale of this case established the applicant company and delegated all the authority related to the construction of this case from the company other than the applicant company on January 16, 1995, and changed the name of the owner from the company other than the applicant to the company other than the applicant, and the contractor from the respondent to the company other than the applicant, and the contractor from the respondent to the company other than the applicant, and there was a dispute over the possession of the building of this case between the respondent and the defective construction company that the construction of this case was to perform the construction again on the contract basis.

H. On February 11, 1995, the respondent filed an application with the applicant, the company other than the applicant, and the company other than the applicant, and the construction company of Taesong integrated, for provisional disposition against the prohibition of interference with possession by claiming the prohibition of interference with possession based on the lien and possession right of the building of this case as the preserved right under the Daegu District Court Kimcheon-gu 95Kahap51, and as of March 17 of the same year from the above support, "the applicant, the company other than the applicant, and the company other than the applicant, and the construction company of Tae Taesong integrated, shall not enter the building of this case or interfere with the possession and use of the building of this case by the other respondent." The respondent has occupied the building of this case until now upon receiving the decision of provisional disposition of prohibition of interference with possession.

2. Applicant's assertion

The applicant asserts that the right to be preserved and the need to preserve the application for provisional disposition of this case are as follows:

(a) Right to be preserved;

The non-applicant company is a contractor of the instant construction project who has the right to receive the instant building from the respondent at the same time as the contractor pays the construction cost in accordance with the contract and has the right to receive the instant building from the respondent, and the seller support committee, on October 30, 1993, decided to pay the construction cost directly to the respondent on behalf of the non-applicant, and obtained the consent of the non-applicant company as to the establishment of the applicant company and the change of the owner of the instant construction from the non-applicant company to the non-applicant company, together with the authority related to the instant construction project. Therefore, the applicant is the person who succeeded to the status of the non-applicant company as the contractor of the instant construction project. Since the contract for the instant construction was terminated, the respondent is obligated to receive the construction cost corresponding to the nature and part of the instant construction project from the applicant who succeeded to the status of the contractor of the instant construction project and deliver the building to the applicant

B. Necessity of conservation

The applicant is a company established by buyers with more than 300 persons of the store of the Pungsung shopping mall, and the above buyers paid 18,20,000,000 won or more to the company other than the applicant for sale. The above buyers paid 18,20,000,000 won or more to the company other than the applicant for sale, and the construction has not been completed for three years or more since the completion of the construction of the construction of this case was discontinued, and there is a lot of buyers due to the fact that the construction of this case has not been completed until the completion date of the construction of this case, and there is a high possibility that they suffered enormous damages due to the failure to purchase a store for three years or more, and there is a lot of damages in the future. In light of all circumstances such as the size of the Pungsung shopping mall, the period and expenses until the completion date of the construction of this case, the applicant needs to immediately seek the delivery of the building of this case to the respondent and the prohibition of interference with the construction of this case.

3. Judgment on the conflict of provisional disposition

A. Breach of provisional disposition

On March 17, 1995, the respondent received a provisional disposition that prohibits possession of the building of this case against the applicant, the company other than the applicant, and the company other than the applicant, and the company other than the applicant for Taesong Construction Co., Ltd. (hereinafter referred to as the "first provisional disposition") as stated in the above 1.h., the respondent made an application for provisional disposition of this case (hereinafter referred to as the "second provisional disposition") such as the purport of the application that conflict with the first provisional disposition as of April 1 of the same year with the respondent as the other party.

(b) Effect of the first provisional disposition; and

The first provisional disposition ordering the prohibition of interference with a certain act does not merely mean to order the other party to prohibit a certain act of interference, but it is based on the premise that the other party should temporarily accept or reduce the other party to conduct a certain act, and it shall be deemed an order including such contents. Therefore, the applicant for provisional disposition shall be granted temporary status from the other party to conduct a certain act without being interfered with by a provisional disposition, which is a legal means, rather than by the real force.

C. The illegality of the second provisional disposition

At least, if it is recognized that the order of the preceding provisional disposition is for the purpose of abolition or modification of the contents of the order of the preceding provisional disposition or the removal of the execution thereof between the same parties, the subsequent provisional disposition shall be deemed unlawful in that it maintains the function of the system of the provisional disposition. However, without filing an objection against the respondent's applicant on March 17, 1995, the applicant filed an objection against the first provisional disposition itself or filed an order to file an objection against the respondent, and without filing an objection against the first provisional disposition, the applicant filed an application for the second provisional disposition for the purpose of abolition or modification of the first provisional disposition as of April 1 of the same year or removing the execution thereof

4. Conclusion

Therefore, the second provisional disposition against the respondent of the applicant is unlawful in light of the contents and time of application between the first provisional disposition and the details of the second provisional disposition, and it shall be dismissed without any further review. Since the judgment of the court below is unfair in conclusion, it shall be revoked by accepting the appeal by the respondent, and the application for the second provisional disposition shall be dismissed, and the judgment of the court below which ordered the second provisional disposition to provide security under the surety insurance policy on the premise that the second provisional disposition is legitimate, the appeal by the applicant against the judgment of the court below which ordered the second provisional disposition to provide security under the surety insurance policy shall be dismissed, and the costs of lawsuit shall be borne by the applicant who lost through the first and second

Judges Lee Jong-soo(Presiding Judge)