The legal nature of compensation pursuant to a decision of indirect compulsory performance under Article 261(1) of the Civil Execution Act, and whether a creditor may enforce compulsory execution to collect compensation corresponding to the period of delay in the performance of an obligation in case where the obligor performs an obligation after the period of performance ordered in the decision of indirect compulsory performance expires (affirmative in principle)

Compensation based on the decision of indirect compulsory performance under Article 261(1) of the Civil Execution Act shall be deemed not only to be a psychological compulsory means that allows an obligor to perform the obligation within the implementation period, but also to be a statutory sanction against an obligor’s nonperformance. Therefore, in cases where an obligor performed an obligation after the implementation period ordered in the decision of indirect compulsory performance expires, barring any special circumstance, the obligee may perform compulsory execution to collect the amount of compensation corresponding to the delayed period of the performance of the obligation.

Article 261(1) of the Civil Execution Act

Plaintiff

New Technology Corporation

Daejeon District Court Decision 201Na10530 Decided February 10, 2012

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. Compensation based on a decision of indirect compulsory performance under Article 261(1) of the Civil Execution Act shall be deemed not only to be a psychological compulsory means that allows an obligor to perform the obligation within the implementation period, but also to be a statutory sanction against an obligor’s nonperformance of obligation. Therefore, in a case where an obligor performed an obligation after the implementation period ordered in a decision of indirect compulsory performance expires, barring any special circumstance, the obligee may enforce compulsory execution for the collection of compensation corresponding to the period for which the performance of obligation is delayed.

2. citing the reasoning of the judgment of the court of first instance, the Daejeon District Court acknowledged the following facts: (a) on August 6, 2010, the case of applying for provisional disposition prohibiting interference with business affairs under the above court No. 2010Kahap590; (b) on August 2, 201, “in the event that the Plaintiff fails to comply with the above order despite being served with the Defendant’s office, the Plaintiff would pay KRW 500,000 per day of the act of violation” to the Defendant; (c) on the ground that the Plaintiff was served with the provisional disposition order of this case from August 13, 2010 to October 4, 2010, the Defendant did not perform the duty under paragraph (1) of the provisional disposition order of this case; (d) on the ground that the Plaintiff’s delivery of the instant provisional disposition order of this case to the Nonparty’s wages and retirement allowances under the second order, the Plaintiff could not be deemed to have received the above provisional disposition of this case’s secret number by the Defendant’s facsimile.

Furthermore, as to the assertion that the Defendant’s compulsory execution against the Plaintiff’s property in accordance with the provisional disposition order of this case constitutes a violation of the principle of trust and good faith and constitutes an abuse of rights, the court below rejected the Plaintiff’s claim seeking the denial of compulsory execution based on the original provisional disposition order of this case, on the ground that, as long as the Plaintiff failed to perform its obligation under the provisional disposition order of this case, it is not sufficient to recognize that the Defendant delayed the Plaintiff’s performance without cooperating with the release of the Plaintiff’s password, and that, as long as the Plaintiff did not perform its obligation under the provisional disposition order of this case, it is possible for the Plaintiff

3. Examining the facts in light of the relevant legal principles and records, the court below is justified in finding the facts as above and judged to the effect that the plaintiff delayed the performance of the duty to act under paragraph (1) of the provisional disposition decision of this case before the cancellation of the password of the computer of this case on April 15, 2011, and it does not seem that there was an error of law that affected the conclusion of the judgment by failing to exhaust all necessary deliberations or by violating the duty of explanation as alleged in the grounds of

However, even if the plaintiff delayed the fulfillment of the duty to act under paragraph (1) of the provisional disposition decision of this case, as decided by the court below, the above duty to act was extinguished as long as the computer password was removed on April 15, 2011 and the duty to act was fulfilled. Therefore, in light of the above legal principles, barring any other special circumstances, the part seeking the exclusion of executive force on compensation corresponding to the delayed period of the above duty to act among the provisional disposition decision of this case shall be without merit, but its executive force shall be excluded from the time when the duty to act was terminated

Nevertheless, the court below dismissed the plaintiff's claim seeking the exclusion of the executory power of the provisional disposition decision of this case. In so doing, there is an error of law by misunderstanding the legal principles as to the inconsistency of the reasoning of the judgment, the grounds for objection, and the exclusion of enforcement

4. The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)