(a) The case subject to an adjudication in the case of applying for a provisional revocation pursuant to the special circumstance under Article 720 of the Civil Procedure Act;

B. The meaning of "where there are special circumstances"

C. Criteria for determining whether monetary compensation is possible

A. In the case of a provisional disposition application for revocation pursuant to the special circumstances stipulated in Article 720 of the Civil Procedure Act, whether the right to preserve is necessary or not, that is, whether the provisional disposition is appropriate should be determined not by the judgment but by the special circumstances, which are the grounds for revocation of the provisional disposition. However, the legitimacy of the provisional disposition is only one of the data on the collection of the special circumstances.

B. For the purpose of Article 720 of the Civil Procedure Act, the term “where there are special circumstances” refers to the cases where the right to be compensated by a provisional disposition may reach the objective of the subordinate country with monetary compensation, or where there are circumstances that the debtor is particularly receiving significant damages due to the execution of the provisional disposition.

C. Whether monetary compensation is possible or not shall be determined objectively according to social norms, taking into account all the circumstances such as the contents of the claim in the lawsuit on the merits in the future, and the purpose of the provisional disposition. Thus, in a case where it is impossible or considerably difficult to compute or prove the amount of damages of the provisional disposition obligee who suffers from infringement of the preserved right in the lawsuit on the merits in the future

D. The right to collateral security, such as the right to collateral security, is a right that can achieve the objective of a final state with monetary compensation. However, if the right to collateral security is revoked and the right to collateral security is disposed of by means other than the auction, it is impossible to determine the amount of damages suffered by the creditor of the provisional disposition, and thus, monetary compensation cannot be made because it is impossible to determine the amount of damages suffered by the creditor of the provisional disposition, since the right to collateral security is revoked and the creditor of the provisional disposition, as a right to collateral security has completed the additional registration of partial transfer, and the creditor of the provisional disposition, as the right to collateral security has been implemented, and the real estate subject to collateral security is sold at the price higher than the remaining claims of the creditor of the right to collateral security at the auction procedure.

Article 720 of the Civil Procedure Act

A. Supreme Court Decision 80Da1334 delivered on January 13, 1981, 4294Sang216 delivered on December 28, 1961; Supreme Court Decision 66Da1748 delivered on October 18, 1966; Supreme Court Decision 66Da2127 delivered on January 24, 1967; Supreme Court Decision 80Da1334 delivered on January 13, 1981

Seoul Trust Bank Co., Ltd., Counsel for the plaintiff-appellant

Attorney Kim Jong-hwan, Counsel for the plaintiff-appellant

Seoul High Court Decision 85Na3714 decided June 9, 1986

The appeal is dismissed.

The costs of appeal shall be borne by the applicant.

The grounds of appeal are examined.

1. As to the second and third points:

In the case of a provisional disposition of revocation pursuant to the special circumstances stipulated in Article 720 of the Civil Procedure Act, the existence of the right to preserve and the need for preservation, i.e., whether the provisional disposition is proper shall not be subject to a trial, and the existence of the special circumstances, which are the grounds for the provisional disposition, shall be determined. However, the legitimacy of the provisional disposition is only one of the data on whether the special circumstances exist (see Supreme Court Decision 80Da1334 delivered on January 13, 1981; Supreme Court Decision 4294Da216 delivered on December 28, 1961).

According to the records, since the court below's judgment did not judge the respondent's assertion on the existence of the right to preserve a provisional disposition of this case that the right to collateral security of this case does not guarantee the loan subrogated by the respondent due to special circumstances, it cannot be said that the illegality of the omission of judgment has been committed, even though the court below did not judge the respondent's assertion on the existence of the right to collateral security of this case, and the respondent's assertion that apartment is constructed on the real estate of this case which is the object of the right to collateral security of this case is nothing more than one of the data on special circumstances, and even if the court below did not judge this issue, it seems that the decision of the court below on the existence of the special situation has been delivered.

2. With respect to points 1, 4 and 5:

As stated in Article 720 of the Civil Procedure Act, the term "when there are special circumstances" means cases where the right to be compensated by the provisional disposition can reach the objective of the subordinate country with monetary compensation, or where there are circumstances where the obligor is particularly suffering significant damages due to the execution of provisional disposition (see Supreme Court Decision 80Da1334 delivered on January 13, 1981; Supreme Court Decision 66Da2127 delivered on January 24, 1967; 66Da1748 delivered on October 18, 196). Here, the issue of whether monetary compensation is possible shall be determined objectively in accordance with social norms by taking into account all the circumstances such as the contents of the claim in the future principal lawsuit and the purpose of the provisional disposition, and it is impossible for the applicant to obtain monetary compensation if it is impossible or remarkably difficult to prove the amount of damages suffered by the obligee due to the infringement of the right to the provisional disposition in the future. According to social norms, the court below's reasoning is that the remaining amount of damages cannot be considered as the respondent's right to receive monetary compensation.

3. 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 Jong-sik (Presiding Justice)