[1] The requirements for revocation of provisional disposition under special circumstances under Article 720 of the Civil Procedure Act

[2] The case affirming the judgment below holding that the decision of provisional disposition on prohibition of entry, etc. issued to preserve a lien to secure the claim for remainder of construction costs constitutes a case where the objective of the nation can be achieved by monetary compensation in light of the nature of the preserved right

[1] For the purpose of Article 720 of the Civil Procedure Act, the term "where there are special circumstances" refers to the case where a situation exists under which the right to be compensated by a provisional disposition may reach the objective of the subordinate country by monetary compensation, or where an obligor is particularly suffering from significant damages due to the execution of a provisional disposition. Whether monetary compensation is possible or not should be determined objectively according to social norms by 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

[2] The case affirming the judgment below which held that the respondent's provisional disposition of prohibition of entry, etc. was issued to preserve a lien for securing the claim for the balance of construction works against the applicant, and it constitutes a case where the respondent's purpose can be achieved by monetary compensation in light of the nature of the preserved right.

[1] Article 720 of the Civil Procedure Act / [2] Article 720 of the Civil Procedure Act, Article 320 (1) of the Civil Act

[1] Supreme Court Decision 80Da1334 decided Jan. 13, 1981 (Gong1981, 13581), Supreme Court Decision 86Da1547 decided Jan. 20, 1987 (Gong1987, 366), Supreme Court Decision 91Da31210 decided Apr. 14, 1992 (Gong192, 1569)

The Korea Park Association, a foundation,

Alert Saturdays Co., Ltd. (Attorney Yang Soo-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 95Na42258 delivered on April 25, 1996

The appeal is dismissed. All costs of appeal are assessed against the respondent.

The grounds of appeal are examined.

Article 720 of the Civil Procedure Act provides that "When there are special circumstances" refers to a case where a right covered by a provisional disposition may reach the objective of the subordinate country by monetary compensation, or where there are circumstances in which the obligor is particularly suffering from significant damage due to the execution of a provisional disposition (see Supreme Court Decisions 66Da2127, Jan. 24, 1967; 80Da1334, Jan. 13, 1981; 80Da1334, Jan. 13, 1981). Whether monetary compensation is possible or not shall be determined objectively according to social norms by taking into account all the circumstances such as the contents of the claim in the lawsuit on the merits of the future and the purpose of the provisional disposition (see Supreme Court Decision 86Da1547, Jan. 20, 1987).

However, according to the reasoning of the judgment below, the applicant is a foundation which aims at the maintenance and management business of the park cemetery, with the basic property of 410,283 square meters of 1,00 m2,00 m2,00,000 won of the above 3th, and the Respondent was awarded a contract on February 1, 198 for the construction of the park cemetery, and the construction of the above 10th, such as construction, electricity, water supply and drainage, landscaping, and change of waterway usage, etc. of the above 3th, which were not possible after completion of the completion of the construction of the park cemetery and the completion of the completion of the construction of the above 3th,47,00,00 won of the above 3rd, and the Respondent was not entitled to the above provisional disposition for the purpose of preserving and managing the park park, and the above Respondent was not entitled to the above provisional disposition for the purpose of preserving and managing the park, and the above Respondent was also entitled to the above provisional disposition for the purpose of selling.

In light of the records, the above fact-finding by the court below is just, and there is no error of misconception of facts in violation of the rules of evidence, and unless there are such special circumstances as above, the measures of the court of first instance that maintained the judgment of the court of first instance that revoked the provisional disposition of this case is just, and the right of retention based on the respondent's original right of possession is not extinguished on the ground that there was a decision of revocation of provisional disposition of this case. Thus, there is no error in the misapprehension of the legal principles as to lien under Article 320 (1) of the Civil Act, special circumstances under Article 720 of the Civil Procedure Act, or the violation of the reasoning, as otherwise alleged in the ground of appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)