Presumption of Unfair Provisional Disposition and Intentional Negligence

The provisional disposition is executed by the court's decision, but the existence of the substantive claim is entrusted to the lawsuit on the merits, and only when it is proved that the provisional disposition is groundless after the execution of the provisional disposition, the applicant is presumed to have been intentional or negligent for the damage caused by the improper execution, unless there are special circumstances.

Article 750 of the Civil Act

Plaintiff

Defendant 1 and one other, Counsel for the defendant Kim-hwan

Daejeon District Court Decision 76Na209 delivered on February 18, 1977

The appeal is dismissed. The costs of appeal are assessed against the defendants.

Judgment on the Defendants’ grounds of appeal

According to the reasoning of the judgment of the court below, the court below affirmed the judgment of the court of first instance which approved the defendants' application for provisional disposition on the ground that the plaintiff's above application for provisional disposition was groundless since the plaintiff cultivated the land as a river site in this case before acquiring ownership, and the plaintiff did not have access to the above land until the prohibition of entry by the above defendants was executed. Since the plaintiff cultivated the land in 1975 as a general rice, and around that time, the plaintiff did not harvest rice due to the above provisional disposition execution by the defendants, and the plaintiff did not have access to the above land. In the appellate court judgment of the case as to the plaintiff's above provisional disposition, the plaintiff's above application for provisional disposition was groundless. The defendants dismissed the application for provisional disposition, and even in the appellate court of final appeal, the defendants did not have an intention or negligence as to the damages suffered by the plaintiff due to the execution of the above provisional disposition and the defendants did not prove that there was no intention or negligence on the part of the above defendants. Thus, the plaintiff is not justified in the judgment of the court's determination of facts or provisional disposition.

Therefore, all appeals are dismissed as without merit. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Han-jin (Presiding Justice)