Whether the amount of release can be determined in issuing a provisional disposition (negative)

Unlike provisional disposition which aims at preserving monetary claims or claims that can be converted into money, provisional disposition has its original purpose, except for monetary claims, in light of the fact that there is a claim for performance or a preservation of the legal relationship in dispute, and in light of the legal provisions that separately prescribe the cancellation of provisional disposition due to special circumstances in Article 307 of the Civil Execution Act, it is reasonable to interpret that the provisions of Article 282 of the Civil Execution Act concerning deposit money in provisional disposition cannot be applied mutatis mutandis to provisional disposition.

Articles 282, 300, 301, and 307 of the Civil Execution Act

Supreme Court Decision 4289Sang26 Delivered on May 10, 1956

Re-appellant

Other than 1 et al.

Busan High Court Order 99Ra6 dated December 9, 1999

The order of the court below shall be reversed. The part of the decision of the court of first instance which determined the deposit money for release shall be revoked.

The grounds of reappeal are examined.

1. According to the reasoning of the order of the court below, the court below may determine the amount of release for the debtor even in the order of provisional disposition, in case where the right to be preserved in the order of provisional disposition can achieve the objective of the country by monetary compensation and the debtor suffers losses which are difficult to recognize due to such provisional disposition. Such interpretation seems to be a legal nature of provisional disposition identical with provisional disposition, but it can be viewed that Article 301 (a) of the Civil Execution Act applies mutatis mutandis to provisional disposition procedure. The applicant's right to be preserved in this case prohibits the respondent's business in order to prevent the expansion of the applicant's losses based on the business sector limitation agreement, but it can be achieved through monetary compensation such as damages claim, etc. which is ultimately caused by the execution of the order of provisional disposition, but it is easy that the respondent's losses suffered by the respondent exceed the applicant's losses due to the execution of the order of provisional disposition and significantly exceeds the amount of damages caused by the applicant's losses.

2. However, in light of the fact that a provisional disposition, unlike a monetary claim or a provisional disposition aimed at preserving a claim that can be converted into money, has its original purpose, in order to preserve a claim for performance or a disputed relation of rights except for a monetary claim, and in light of the legal provisions that separately provide for the cancellation of a provisional disposition due to special circumstances under Article 307 of the Civil Execution Act, it is reasonable to interpret that the provisions of Article 282 of the Civil Execution Act concerning an amount of deposit shall not apply mutatis mutandis to a provisional disposition (see Supreme Court Decision 4289DaDa26, May 10, 1956).

Nevertheless, the order of the court below that maintained the first instance court's decision which determined the amount of release when citing the provisional disposition of this case was erroneous in interpreting whether the provisional disposition of this case applies mutatis mutandis under Article 282 of the Civil Execution Act and affecting the conclusion of the decision.

3. Therefore, the order of the court below shall be reversed, and the records shall be sufficient for this court to directly render a judgment. Therefore, the part of the decision of the court of first instance which set the amount of deposit for sea disaster among the decision of the court of first instance shall be revoked. It

Justices Yoon Jae-sik (Presiding Justice)