(State)2019Ra508 Provisional Measures

A Stock Company

Doz. ○○, Gaz. 00

Law Firm Squa, Attorneys Lee Jae-young, and Kim Yong-han, Counsel for the plaintiff-appellant

1. B

Representative Director ○ Kim

Law Firm BelS, Attorney Oh Sung-hoon, Counsel for the plaintiff-appellant

2. C:

MaximumO

Attorney Park Il-soo, Counsel for the plaintiff-appellant

Law Firm (Limited) continental Aju, Attorneys Southern Dong Dong-hwan, and normal management

Jeju District Court Order 2018Kahap10270 dated February 21, 2019

June 24, 2019

1. The appeal of this case is dismissed.

2. Costs of appeal shall be borne by the creditor.

The decision of the first instance court shall be revoked. The debtor shall not proceed with the installation of wind power generation structures on each land listed in the separate sheet (hereinafter referred to as "each land of this case"). The execution officer shall give public notice of the purport of the above order in an appropriate manner. If the debtor violates the above order, the execution officer shall pay to the creditor 50,000,000 per day of the violation.

1. Basic facts

The following facts may be acknowledged in full view of the records and the overall purport of the examination of the case.

A. The creditor owns 836,351 square meters of miscellaneous land in Seopo-si, Sinpo-si, Sinpo-si, Sinpo-si, and manages and operates an airfield (hereinafter referred to as “instant airfield”) on the ground in accordance with Article 75, etc. of the former Aviation Act (amended by Act No. 14113 and 1416, Mar. 29, 2016; hereinafter the same shall apply) from 1983, when it was enacted by the Airport Act and the Aviation Safety Act (amended by Act No. 14113 and 1416, Mar. 30, 201) since 1983.

B. The debtor B Co., Ltd. (hereinafter referred to as "debtor B") filed an application with Jeju Special Self-Governing Province for permission for electric power generation and approval for implementation of development projects to operate a wind power plant on each of the instant land located far from the airfield in the southwest direction. The Jeju Special Self-Governing Province Governor approved the agreement with the related agencies and departments, including the opinions of the Jeju Aviation Agency, on October 17, 2016 of the Enforcement Rule of the Aviation Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 410, Mar. 30, 2017) to the effect that "It is difficult to consult about whether the flight safety of aircraft is impeded, as prescribed by Article 246-2 (2) of the former Enforcement Rule of the Aviation Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport, No. 410)."

C. Around December 6, 2016, a creditor sent a document requesting the Jeju Special Self-Governing Province Governor to proceed with the procedure to make the above agreement possible within a prompt time. However, on April 11, 2017, the Jeju Special Self-Governing Province Governor respondeded that the creditor did not have a duty to consult with the creditor because the provisions related to the former Aviation Act apply only to public airfields.

D. Around March 28, 2018, the debtor B entered into a construction contract with the debtor C Co., Ltd. (hereinafter referred to as the "debtor C") and the Gangnam Co., Ltd (hereinafter referred to as the "Business Name C") for the wind power plant construction (hereinafter referred to as the "construction of this case").

E. The debtor B reported on the authorization of the wind power plant construction plan and the commencement of the development project to Jeju Special Self-Governing Province, and the Jeju Special Self-Governing Province Governor accepted it on June 28, 2018.

2. Determination

A. Summary of creditor's assertion

As wind power generation devices to be installed by the construction of this case threaten the operation safety of aircraft using the airfield of this case, the obligee cannot use the airfield of this case for its original purpose. The installation of wind power generation devices constitutes an act of interference with the Plaintiff’s ownership, such as the Plaintiff’s land, and thus, the obligee sought provisional disposition such as the purport of the application for exclusion and prevention of interference based on ownership.

B. Determination

According to the purport of the record and examination of this case, (1) the creditors are operating the airfield of this case mainly for the training of aircraft operators, and (2) the aircraft using the airfield of this case is in accordance with the above characteristics such as Scrypt 172 (C172) and its approach to the airfield of this case, which is located in the direction of the 6th Ecrypt 3, which is the surface of the airfield of this case, for the purpose of preventing the entry and departure of the airfield of this case. (5) The airport of this case is located in the direction of the 6th Ecrypt 3 and D, which is the surface of the airfield of this case, and the height of the 6th Ecrypt 1, which is the surface of the airfield of this case. (3) the height of the 6th Ecrypt 1, which is the surface of the airfield of this case.

Furthermore, with respect to whether the above interference exceeds the tolerance limit under the social norms, all circumstances such as the nature and degree of damage, the public nature and social value of the damaged interest, the attitude of the harmful act, the public nature and social value of the harmful act, the public nature and social value of the harmful act, the public regulation and authorization and permission, the relationship between the public law and the permission, the regional nature, and the climate relationship of land use should be comprehensively considered.

In light of the above-mentioned facts and the overall purport of the record and examination, ① the airfield was used only for the east State of the runway, and the west State was established only for the approaching State Aircraft, and its use was prohibited after the approval of the development project of this case was granted, and the west State was established on August 31, 2017. Even if the structure of this case is completed, it is possible for the obligee to operate the airfield by using the west State as before even if it is possible for the obligee to use the airfield (the obligee can not be deemed to have operated the airfield as a whole, because the training conducted by the Kaju National Aviation University after 2014 was transferred to the airfield. However, it is not sufficient for creditors to recognize that the Kaju-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U.

Therefore, the application of this case is insufficient to vindicate the right to be preserved.

3. Conclusion

Therefore, the petition of this case is dismissed as it is without merit, and the decision of the court of first instance is just and it is dismissed as the creditor's appeal is without merit. It is so decided as per Disposition.

June 24, 2019

The presiding judge and judges shall be reappointed.

Judges Nam-nam

Judge Lee Jin-hun