A. The meaning of "special circumstance" as a ground for revocation of provisional disposition and the standard for determining whether "the debtor is much more damaged than ordinary damages by provisional disposition."

(b) The case holding that the respondent has "special circumstances" in Paragraph (a) above, in full view of the circumstances such as the respondent, seeking the revocation of the provisional injunction, took measures to reduce the damage of the applicant after the provisional injunction, and the remainder of the area other than the area subject to the provisional injunction is almost completed.

C. Whether the debtor's damage is necessary for the public interest in determining the existence of "special circumstances" in the above Paragraph (a) (negative)

A. As a ground for revocation of provisional disposition, “special circumstance” under Article 720(a) of the Civil Procedure Act refers to cases where “a situation in which the right to preserve is able to achieve its objective by monetary compensation,” or “a situation in which an obligor would incur much more damage than ordinary damages by a provisional disposition.” Of these circumstances, whether there is any circumstance after the provisional disposition is determined by whether maintaining provisional disposition is harsh and fair to the obligor as it is highly likely that the obligor would suffer more damage than that anticipated at the time of the provisional disposition, by comprehensively taking into account all the circumstances such as the type and content of the provisional disposition.

B. The case holding that the above paragraph (1) "special circumstances" exists to the respondent in full view of all the above circumstances on the grounds that the respondent plans to change the design to reduce damage to the applicant after the provisional disposition and plan to excavate the underground excavation of the area subject to the provisional disposition, without blasting to explosives in the case of underground excavation in the area subject to the provisional disposition, and the building owned by the applicant is based on the underground floor above the ground level, and the building that the respondent intends to construct is the 18th floor above the ground level above the ground level above the ground level, and 50% has already been sold in lots, and the remaining part except the area subject to the provisional disposition decision is almost completed, if the underground excavation work is revoked and the construction is continued, the additional damage that the building owned by the applicant will not be caused if the construction is maintained, or if the provisional disposition decision is maintained, the respondent may no longer be able to proceed with the construction work and the respondent is likely to suffer enormous damage.

C. The existence of “special circumstances” as referred to in the above Paragraph (a) is based on whether there are circumstances where the obligor would have much more damage than the ordinary damages due to a provisional disposition, and it is not necessarily required that the damage is a public interest damage.

(b) Article 720 of the Civil Procedure Act;

A. Supreme Court Decision 66Da2127 delivered on January 24, 1967 (No. 15~Do resident24 delivered on January 13, 1981) 80Da1334 delivered on January 13, 1981 (Gong1981, 13581) (Gong1547 delivered on January 20, 1987)

Attorney Hong-sung et al., Counsel for the applicant

Respondent

Respondent Co., Ltd. and supplementary intervenors et al., Counsel for the plaintiff-appellant and 1 other

Daegu High Court Decision 91Na927 delivered on July 25, 1991

The appeal is dismissed.

The costs of appeal shall be assessed against the petitioner.

The grounds of appeal are examined.

The special circumstance stipulated in Article 720 of the Civil Procedure Act, as a ground for revocation of provisional disposition, refers to a case where the right to be preserved can achieve the purpose of the respondent by monetary compensation, or one of the circumstances where the obligor would suffer more wheelchairs damages than ordinary damages by the provisional disposition. The issue of whether there is any circumstance after the provisional disposition is determined by whether maintaining provisional disposition is harsh and fair to the obligor as it is much more likely that the obligor would suffer more damage than the expected damages at the time of the provisional disposition, by comprehensively taking into account all the circumstances such as the type and content of the provisional disposition.

According to the reasoning of the judgment of the court of first instance cited by the court below, the first instance court acknowledged the fact that the respondent suffered damage as stated in its holding on the building owned by the applicant (the first floor and the fourth floor above the ground) due to the construction of this case, and presumed that the applicant has the right to seek provisional disposition of this case. Furthermore, according to these macroficial Evidence, the respondent was required to change the design of underground excavation and excavation depth to reduce damage to the applicant after the provisional disposition of this case, and the respondent was planned to excavate the building by using a non-vibration crushor which is to be cut down by sloak power instead of blasting with explosives in the underground excavation of the area subject to provisional disposition of this case. However, the building that the respondent intends to construct was based on the underground surface and the ground surface of this case is likely to suffer more than the above provisional disposition of this case, and the building that the respondent would have suffered more damage than the above provisional disposition of this case, and the remaining part of the building which the respondent had already been recognized as the area subject to provisional disposition of this case is recognized as the above.

In light of the records, we affirm all the above fact-finding of the court below and the judgment that cited the special situation of the respondent's assertion based on the above fact-finding of the court below, and there are no errors in the misapprehension of legal principles such as the theory of lawsuit.

First of all, in the disposition of prohibition of construction work, it is required to determine whether there is a special circumstance under Article 720 of the Civil Procedure Act in the disposition of prohibition of construction work, but it is required to determine whether there is a circumstance that the debtor's damage is a public interest, but whether there is a special circumstance that the debtor would suffer more wheel damages than the ordinary damages due to the provisional disposition, and it is not necessarily required to be a public interest damage.

In addition, the conclusion of the court below is unreasonable in light of the fact that the damage sustained by the petitioner in this case is difficult to compensate for money. However, as seen above, the special circumstance acknowledged by the court below does not recognize that the applicant's right to preserve property in this case can achieve its purpose by monetary compensation, but on the ground that the respondent has a circumstance that the respondent would suffer more damage than ordinary damages by the provisional disposition in this case, and thus, the court below's conclusion cannot be criticized as a ground for the lawsuit.

In addition, the theory of the court below pointed out that the construction of this case was implemented in violation of relevant laws and regulations on the grounds of various administrative laws. However, even if the construction of this case, which the respondent is the respondent, violated administrative laws and regulations such as household litigation, it cannot be viewed that there is a special circumstance for the respondent to seek cancellation of the provisional disposition of this case.

In the end, all the arguments are due to no reason.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-ju (Presiding Justice)