A. Application for revocation of provisional disposition and propriety of provisional disposition due to special circumstances

B. The meaning of "when special circumstances exist" under Article 720 of the Civil Procedure Act

A. In the case of a provisional disposition application due to a special circumstance, the existence of the special circumstance, which is the reason for the provisional disposition, is only the object of the judgment, and the propriety of the provisional disposition is merely a material about the collection of the special situation.

B. For the purpose of Article 720 of the Civil Procedure Act, the term "where there is a special circumstance" refers to the case where the right preserved by a provisional disposition can reach the objective of the subordinate country by monetary compensation, or where there are circumstances where the obligor of the provisional disposition is particularly suffering from significant damages due to the execution of the provisional disposition. Therefore, the design right is hard to compensate for the infringement because the right is an intangible idea, and it is hard to compensate for the damages caused by the infringement. In the case where the industrial property is infringed, the mental damage caused by the damage of the holder's reputation credit cannot be satisfied only with monetary compensation, and in the case where the provisional disposition obligee directly executes the industrial property, the possibility of monetary compensation is low compared to the case where the provisional disposition obligee executes the industrial property by himself

Article 720 of the Civil Procedure Act

Supreme Court Decision 66Da2127 Decided January 24, 1967

Attorney Kim Young-young, Counsel for the applicant

Attorney Kim Young-young, Counsel for the new media corporation-appellant

Respondent

Seoul High Court Decision 79Na3902 delivered on April 25, 1980

The appeal is dismissed.

The costs of appeal shall be borne by the applicant.

The grounds of appeal are examined.

1. According to the records, it is clear that the case is an application for the provisional disposition on the ground that there is a special circumstance against the decision of provisional disposition already issued. Thus, in the case of the application for provisional disposition, whether the existence of the right to preserve and the necessity for preservation exists, that is, the propriety of the provisional disposition is not the object of a trial, and the existence of the special circumstance, which is the reason for the provisional disposition, should be determined. However, the legitimacy of the provisional disposition is only one of the materials concerning the propriety of the provisional disposition (see, e.g., Supreme Court Decision 4294No216, Dec. 28, 1961). Thus, the judgment of the court below is not erroneous because it did not judge the legitimacy of the provisional disposition, which is the applicant, because it is not a direct evidence of the special situation, and therefore, it is not possible to find it illegal even if it is not a sub-written evidence of the theory of lawsuit, and therefore, it is groundless.

2. For the purpose of Article 720 of the Civil Procedure Act, the term "where there is a special circumstance" means the case where the right preserved by a provisional disposition can be met with monetary compensation, or where there is a circumstance where the provisional disposition obligor is particularly suffering from significant damages due to the execution of the provisional disposition (see Supreme Court Decision 66Da2127, Jan. 24, 1967). The design right, which is the right to be preserved, is an intangible idea and it is difficult to pay damages due to the infringement, and it is obvious that there is mental damage due to the damage to the reputation credit of the industrial property, and it cannot be satisfied only with monetary compensation, and it is reasonable to view that there is little possibility of monetary compensation for the case where the provisional disposition obligee makes another person conduct the industrial property as in this case, and there is no evidence that the court below lawfully rejected the provisional disposition and there is no indirect damage to the intervenor, and it cannot be said that there is no error in the misapprehension of the legal principles as to the applicant's third party's damages due to the execution of the provisional disposition.

Therefore, without merit, 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 judges.

Justices Jeong Tae-won (Presiding Justice)