[1] Whether the exercise period of the right of possession protection under Articles 204(3) and 205(2) of the Civil Act constitutes the period of release (affirmative)

[2] Whether the application for provisional disposition alone complies with the exclusion period under Article 204(3) of the Civil Code or Article 205(2) of the same Act (negative)

[1] The one-year period of exercise under Articles 204(3) and 205(2) of the Civil Act is the exclusion period, not the right subject to the exclusion period here, but the ordinary right is a claim, and if the state of deprivation of possession or obstruction elapses for a certain period, it can be seen as the disturbance of peace order and recovery from it. Thus, not allowing restitution after a certain period of time is more than the possession system, and there are reasons for imposing a short-term exclusion period on the right to claim such as recovery of possession or removal of disturbance. In light of the above, it is reasonable to interpret it as the so-called period of release to be filed within that period, rather than the one-year period of exercise of right outside trial, and it is reasonable to interpret it as the so-called period of release to be filed within that period.

[2] As a matter of course, a preservative measure, such as provisional attachment and provisional disposition, is executed provisionally and uniformly for the purpose of preserving future enforcement or protecting the right relationship in dispute, it is likely to bring about a lawsuit on the merits based on such preservative measure, even if the limitation period has expired, if a request for preservative measure is interpreted to have been filed within the limitation period, it may bring about a result that a lawsuit on the merits may again be instituted based on such preservative measure, and thus, it may eventually be recognized that the suspension or suspension may be granted in the limitation period. This is contrary to the purport of the short-term limitation period, not the limitation period, even if the Act recognizes the protection of possessory right, while the right to possession is ordinarily recognized as having the nature of the right to claim for preservative measure, and is contrary to the nature of possessory right aimed at protecting de facto control and the purport of the above exclusion period, in light of the above purport, it is reasonable to institute a lawsuit on the merits within the limitation period.

[1] Articles 204(3) and 205(2) of the Civil Act / [2] Articles 204(3) and 205(2) of the Civil Act

[1] Supreme Court Decision 71Da2641 decided Feb. 22, 1972 (No. 20-1, 115), Supreme Court Decision 2001Da8097, 8103 decided Apr. 26, 2002 (Gong2002Sang, 1251)

Gangnam-gu (Attorney Choi Sung-sung et al., Counsel for the defendant-appellant)

Cho Man-gun et al. (Law Firm Kimhae & World, Attorneys Yellow Tae-jin et al., Counsel for the plaintiff-appellant)

Changwon District Court Decision 2002Kadan10488 delivered on September 17, 2002

April 23, 2004

1. Revocation of the first instance judgment.

2. The obligee’s motion of this case is all dismissed.

3. The total costs of the lawsuit shall be borne by the obligee.

1. Purport of request;

(a) The debtors shall:

(1) order the creditor to order the building listed in Annex 4 to the list; and

(2) It shall not interfere with the creditor’s possession and use of each of the above immovables by entering each real estate listed in the separate sheet or by performing building construction works on each land listed in paragraphs 1 through 3 of the same list.

(b) The enforcement officer shall publicly notify the purport of the above order in an appropriate manner.

2. Purport of appeal

The same shall apply to the order.

1. Facts of recognition;

[Recognitions] Evidence Nos. 2, 8, 11, Evidence Nos. 3-1 through 3, Evidence Nos. 9-1 through 21, Evidence Nos. 10-1, 2, and testimony of witnesses of the first instance court, the purport of the whole pleadings

A. On October 13, 2001, a creditor entered into a contract to purchase each of the real estate listed in the separate sheet in the annexed sheet in the amount of KRW 100,000,000,000. Around that time, each of the above real estate was handed over, and thereafter, on December 1, 2001, the creditor moved into the building listed in paragraph 4 of the same list, and started civil works such as the construction of access roads for the purpose of newly constructing inspections on each of the land listed in the annexed list 1 through 3 from that time.

B. The debtors, on May 2002, have brought down creditors on the above building, and had constructed a new temple on each of the above land without the creditor's consent or approval.

C. The obligee acquired the right of possession on each real estate listed in the separate sheet as mentioned in the foregoing A. As the obligor stated in the foregoing B, the obligee filed the instant application on the ground that he/she was deprived of the obligee’s right of possession and interfered with the exercise of the right.

2. Determination as to the existence of a preserved right

A. The Civil Act recognizes possessory right, the de facto control of the article, and recognizes the right to claim the protection of possession for the protection of the article. Article 204 of the Civil Act provides that "the possessor may claim the return of and the compensation for damages to the article in question," and Article 205 of the Civil Act provides that "the possessor may claim the removal of the disturbance and the compensation for damages if the possessor has suffered the disturbance of the possession", and Article 205 of the Civil Act provides that "the possessor may claim the removal of the disturbance and the compensation for damages," while the right to claim the removal of the obstruction of possession shall be exercised within one year from the date on which he/she was deprived of or was disturbed of the possession or from the date on which the interfered with the possession was terminated."

B. The above one-year period is the exclusion period, not the right to form an ordinary right, but the ordinary right to claim the exclusion period, and the restoration of the situation of the deprivation of possession or the obstruction for a certain period can be seen as the disturbance of peace order rather than the peace order. Thus, not allowing restitution after a certain period is more than the possession system, and there are reasons for imposing a short-term exclusion period on the right to claim such as the recovery of possession or the removal of disturbance. In light of the above, it is reasonable to interpret the above one-year period as the discharge period, not the one-year period, but the one-year period, which must be filed within the said period (see Supreme Court Decision 2001Da8097, 8103, Apr. 26, 2002).

C. Meanwhile, as a matter of course, a preservative measure, such as provisional attachment and provisional disposition, is carried out temporarily and uniformly for the purpose of preserving the future execution or regulating the right relationship in dispute, and thus, the institution of the lawsuit is proposed. Thus, even if the same result was achieved due to the execution of provisional disposition on the name of the building in this case, it cannot be considered as the realization of ultimate right. The above period is not applicable to the provisions on the interruption or suspension of the statute of limitations due to the exclusion period. Therefore, it is difficult to suspend the progress as an application for preservative measure, and if it is interpreted that the application for preservative measure is filed within the exclusion period, it may bring about the result that the lawsuit may again be instituted within the exclusion period after the exclusion period expires. Accordingly, it may be reasonable to recognize the effect of suspension or suspension as valid, and the Civil Act recognizes the protection of the right to claim possession, while the right to claim for provisional disposition goes against the purport of exclusion period, rather than the right to claim possession, and the Civil Act recognizes the type of the right to claim possession within the exclusion period as the above and the exclusion period.

D. However, since the creditor is the person who has not brought a lawsuit on the merits based on the right to claim the protection of possession within one year from the date of his secession from the possession, the creditor's right to claim the lawsuit on the merits against the debtor has ceased to exist beyond the exclusion period (the creditor is entitled to prevent the creditor from occupying and using each of the above immovables by entering each real estate listed in the separate sheet or constructing a building on each land listed in the separate sheet 1 through 1 through 3, etc.). The purport of the motion in this case is to prohibit the debtor from entering each of the above immovables. The purport of the motion in this case is to prohibit the above entry into each of the above real estate, which eventually results in the same effect as that of the above, and the right to claim the prevention of obstruction of possession can be exercised at any time while there is concern of interference, and it is reasonable to interpret that the creditor's right to claim the prevention of interference with possession is to preserve the above contents in the purport of the motion in this case. Thus, if the creditor's right to claim the prohibition of possession can no longer be established.

3. Conclusion

Therefore, the motion of provisional disposition by the creditor of this case shall be dismissed as it has no preserved right, and it shall be dismissed as there is no ground. Accordingly, the judgment of the court of first instance which has different conclusions shall be revoked as unfair, and all of the creditors' motion shall be dismissed and it shall be so decided as per Disposition. [Attachment] It

Judges Yellow Mung-Gyeong (Presiding Judge)