[1] In case where a creditor who received a provisional disposition ordering the fulfillment of the duty of act by the incidental body executes the provisional disposition by the method of indirect compulsory execution, the starting point for the execution period

[2] Where an obligor continues to commit an act of violating the order in a provisional disposition judgment prior to a notification of the judgment of provisional disposition ordering an omission, whether the obligor shall file an application for indirect compulsory performance within two weeks from the date of notification to the obligee of the decision of provisional disposition (affirmative)

[1] Even in cases where a creditor who received a provisional disposition ordering the performance of the duty of act in the military unit by indirect compulsory execution applies mutatis mutandis to the execution of the provisional disposition order by the method of indirect compulsory execution, barring any special circumstance, an application for indirect compulsory execution shall be filed within two weeks from the date of notification to the creditor of the provisional disposition order. An application for indirect compulsory execution after the execution period is expired is unlawful. However, in cases where the obligation of the military unit to act in the provisional disposition continues for a certain period, the above execution period is not in progress unless the debtor faithfully performs his/her duty of act and it is not necessary to apply for compulsory execution. In light of the debtor's attitude, if it is deemed that indirect compulsory execution is necessary due to the failure of the duty of act in the light of the debtor's attitude, then

[2] The provisional disposition ordering a debtor to make a simple omission takes effect by notifying the debtor of the provisional disposition judgment. However, since the debtor's act of violating the order requires the realization of the state of omission by the method of indirect compulsory performance only at the time of the debtor's act of violating the order, in principle, an application for indirect compulsory performance shall be filed within two weeks from that time. However, if the debtor continues to commit an act of violating the order in the judgment of provisional disposition prior to the notification of the judgment of provisional disposition, an application for indirect compulsory performance shall be filed within two weeks from the date of notification to the creditor, and

[1] Articles 261, 292(2), and 301 of the Civil Execution Act / [2] Articles 261, 292(2), and 301 of the Civil Execution Act

[1] Supreme Court Order 9Ma6107 dated January 29, 2001 (Gong2001Ha, 1439) / [2] Supreme Court Order 82MaKa50 dated July 16, 1982 (Gong1982, 808)

Creditors

An adult Private Teaching Institute (Law Firm Gwangjutong, Attorneys Transferred-jin, Counsel for defendant-appellant)

Gwangju High Court Order 2010Ra52 dated June 8, 2010

The reappeal is dismissed.

The grounds of reappeal are examined.

The provisions concerning the provisional attachment procedure shall apply mutatis mutandis to the provisional attachment procedure (main sentence of Article 301 of the Civil Execution Act). However, Article 292(2) of the Civil Execution Act provides that “The execution of judgment on provisional attachment shall not be effected if it exceeds two weeks from the date on which the judgment is notified to the creditor.” Provisional attachment is based on the premise that the judgment can be executed immediately if the judgment is notified to

Therefore, even in cases where a creditor who received the provisional disposition order ordering the performance of the duty of act in the form of indirect compulsory execution applies mutatis mutandis to the execution of the provisional disposition order by the method of indirect compulsory execution, he/she shall apply for indirect compulsory execution within 2 weeks from the date of notification to the creditor of the provisional disposition order, barring any special circumstance. An application for indirect compulsory execution after the execution period has expired is unlawful. However, in cases where the obligation of indirect compulsory performance to act in the form of provisional disposition continues for a certain period, the above execution period does not run unless the debtor is in itself necessary to apply for compulsory execution by faithfully performing his/her duty of act, and the above two weeks period is calculated from the time when it is acknowledged that indirect compulsory performance is necessary due to the debtor's failure to act in the light of the debtor's attitude (see Supreme Court Order 9Ma6107, Jan. 29, 2001). Meanwhile, in cases where a provisional disposition ordering a simple omission order takes effect by notifying the debtor of such provisional disposition order, an application for indirect compulsory execution is made within 26 weeks from the date of indirect compulsory execution.

According to the reasoning of the order of the court below and the record, the creditor asserted that on March 31, 2009, the debtor was released from disciplinary action against the professor at ○ University, who operated the debtor, closed the professor's office used by the creditor, deleted the ID from the website of ○ University and prevented the use of the premises. The creditor applied for provisional disposition on September 22, 2009, stating that "the debtor applied for provisional disposition on the preservation of the status of the professor at ○ University (2009Kahap5555)" should not obstruct the creditor from performing his duties as a professor at ○ University. The above court issued a provisional disposition on September 22, 2009, stating that "the debtor applied for provisional disposition on the provisional disposition of this case by preventing the use of the laboratory within ○ University Camp University campus, or by not granting or removing Dodi (ID), without permission, or by arranging the phone number without permission or by transmitting the phone number to ○ University site."

In light of the above legal principles, since the debtor has continued to commit an act of violating the order in the provisional disposition order prior to the issuance of the provisional disposition order in this case, the creditor should have filed an application for indirect compulsory performance within two weeks from the date of receiving the notification of the provisional disposition order in this case, and the application for indirect compulsory performance in this case filed after the lapse of the period shall be deemed unlawful.

The order of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as alleged in the grounds for reappeal.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)