The case holding that even if the respondent voluntarily removed the facilities installed in the hot spring hole after the application for temporary injunction against the prohibition of hot spring construction and the prohibition of the sale of hot spring production, there is still a need for conservation in light of all the circumstances.

After an application for provisional disposition seeking prohibition against the act of removing a facility installed in a hot spring hole by the respondent, which is another co-owner who installed a hot spring hole without prior consent or ex post facto consent in the above hot spring hole, the case holding that there is still a need for preservation in light of all the circumstances, such as the nature of the provisional disposition for simple omission and the special provisions of the Hot Spring Act, which are easy for the respondent to install a new facility that has been removed by the respondent, even if the respondent voluntarily removed the facility.

Article 300(2) of the Civil Execution Act, Articles 263 and 265 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant)

Applicant

Taecheon Development Corporation

Daejeon High Court Order 2002Ra67 dated February 14, 2003

The order of the court below is reversed, and the case is remanded to Daejeon High Court.

1. Based on the evidence employed, the court below acknowledged the following facts: the applicant purchased, on October 16, 1998, the right of hot spring 440 square meters (hereinafter referred to as "land of this case") and the right of hot spring 11 installed on the land of this case (hereinafter referred to as "hot spring hole of this case") from the non-applicant 1 on October 16, 1998, the above non-applicant 1 share (total 1/2 share) which can be melting hot spring and using hot spring water; on the same day, the applicant completed the registration of ownership transfer with respect to non-applicant 1 share of this case among the land of this case; on the other hand, the respondent acquired the remaining 1/2 share of this case from the non-applicant 2 on March 12, 1997, only 146.6/40 share of this case were purchased on March 20 of the same year, and completed the registration of ownership transfer with respect to the above share of this case without obtaining it from the applicant on March 24, 201, 4.

Then, the court below rejected the Respondent's application for provisional disposition of this case where the applicant seeking prohibition against the use of the hot spring hole of this case or the production, sale, distribution, etc. of hot spring water of this case without the prior consent of the applicant holding 1/2 of the ownership of this case or ex post facto consent, and where the actor uses and sells hot spring water in the hot spring hole of this case without the consent of the Respondent, even though the Respondent holding other 1/2 of the ownership of the land of this case, the Respondent does not constitute an act infringing on the ownership of the land of this case, and the Respondent can not request the Respondent to avoid the violation as the act of preservation of the common property of this case. However, the Respondent's request for provisional disposition of this case was filed at the end of July 202, which had been installed in the hot spring hole of this case, but the Respondent's suspension of the use of hot spring water of this case was not a dispute between the Respondent and the Respondent's request for provisional disposition of this case.

2. However, the preserved right of this case claimed by the applicant includes the right to claim prevention of interference in the future, in addition to the right to claim a temporary injunction based on the share ownership, and the provisional injunction of this case is nothing more than seeking an order of simple omission as a defense means to protect the rights and interests of the applicant by prohibiting active infringement by prohibiting the respondent, and according to Articles 13(1) and 24 subparag. 2 of the Hot Spring Act, inasmuch as the act of using and selling hot spring water is not permitted under the state where only the permission for the utilization of hot spring was granted as in this case, it cannot be deemed that the respondent's act of using and selling hot spring water has a significant impact on the respondent because the respondent is ordering the future omission to be sought by the applicant. Thus, the necessity of preservation required for the provisional disposition of this case is raised or there is no reason to demand strict evidence.

However, according to the facts and records acknowledged by the court below, since April 2001, the respondent installed a hot spring hole in this case's hot spring hole from around 2001 without the consent of the applicant and provided and sold hot spring water periodically as well as without the permission of the competent authorities, and the applicant filed a complaint against the respondent and filed a complaint against the respondent, the utilization of hot spring water was suspended until July 2002. The Respondent removed the Respondent's transfer of hot spring water, pipes, electric facilities, measuring instruments, etc. are easy to be installed again as simple facilities, and the Respondent has a domicile in Seoul, while the Respondent has used large volume of hot spring water while running a large-scale hot spring resort business in the name of "spurf source" in the vicinity of the land in this case. Thus, in order to avoid significant damage to legal relationship, the Respondent still needs to be preserved.

Nevertheless, the court below rejected the application of this case solely on the ground that the provisional disposition of this case is unnecessary, and there is no error of law by misunderstanding the legal principles as to the necessity of preservation in the provisional disposition ordering simple omission, which affected the conclusion of the judgment. The ground for reappeal pointing this out has merit.

3. Therefore, the order of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)