[1] In a case where a provisional disposition against disposal was executed unfairly to preserve the right to claim for registration of real estate, whether such damage is caused (negative with qualification)

[2] The case denying losses equivalent to the statutory rate on compensation for losses, in case where the land was expropriated after the provisional disposition was cancelled and the compensation for losses was paid after the prior consultation on the compensation for losses was made with respect to the land to be included in the road site

[1] Where a disposition of prohibition of disposal was executed unfairly to preserve the right to claim registration of real estate, such provisional disposition has relative effect as to the prohibition of disposal, and even after its execution, an obligor still continues to use and profit from the real estate in question and can dispose of it. Thus, even if the existence of the above provisional disposition was lost an opportunity to dispose of the real estate, or the price was not paid from time to time, it cannot be deemed that the damage was caused unless it does not exceed the occupation profit gained while holding the real estate in question. Even if the damage was caused by a disadvantage exceeding the occupation profit of a snow company, the damage shall be liable only when the obligee knew or could have known such circumstance.

[2] The case denying the loss compensation on the ground that there is no circumstance that the statutory rate equivalent to the compensation for loss exceeds the occupation profit of the land, in case where the land was expropriated after the execution of the provisional disposition was cancelled and the compensation for the loss was received, since there was a prior consultation on the compensation for the loss of the land to be included in the road site, it was not paid the agreed compensation for loss due to the unfair

[1] Articles 750 and 763 of the Civil Act, Article 714 of the Civil Procedure Act, Article 67 of the Land Expropriation Act / [2] Article 750 of the Civil Act, Article 714 of the Civil Procedure Act, Article 67 of the Land Expropriation Act

[1] Supreme Court Decision 79Da2138, 2139 decided Feb. 26, 1980 (Gong1980, 12655), Supreme Court Decision 94Da6529 decided Apr. 14, 1995 (Gong1995Sang, 1842), Supreme Court Decision 95Da34095, 34101 decided Dec. 12, 1995 (Gong196Sang, 376)

Plaintiff

Defendant

Busan District Court Decision 97Na12317 delivered on April 3, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Summary of the judgment below

According to the reasoning of the judgment of the court below, the court below rejected the defendant's claim for provisional disposition No. 1444 on October 15, 1992 against the plaintiff 92, Busan District Court No. 922346, 795 square meters on the plaintiff's 795 square meters on the plaintiff's 304 square meters on the above provisional disposition No. 196, but the plaintiff's claim for provisional disposition No. 964 on the 194 square meters on the ground that the above provisional disposition No. 94 was revoked on October 15, 1991, and the plaintiff's claim for provisional disposition No. 94 on the 94 square meters on the above provisional disposition No. 96, which had been revoked on the ground that the plaintiff's claim for provisional disposition No. 94 on the above provisional disposition No. 94 was revoked on the ground that the plaintiff's claim for provisional disposition No. 94 on October 19, 192 was rejected on the ground that the above provisional judgment No. 19

2. Regarding ground of appeal No. 1

If a provisional disposition has been executed to preserve the right to claim registration of real estate, such provisional disposition has relative effect as to the prohibition of disposal, and even after its execution, an obligor still continues to use and profit from the real estate in question and can dispose of it. Thus, even though the existence of such provisional disposition was lost an opportunity to dispose of the real estate or was unable to receive the price in time due to its failure to pay it, it is difficult to deem that it did not exceed the occupation profit gained while holding the real estate concerned. Even if damage was incurred due to a disadvantage exceeding the occupation profit gained while holding the real estate, such damage should be held liable only when the provisional disposition obligee knew or could have known such circumstance.

According to the records, although the part of this case was incorporated into a road site by the implementation of an urban planning project, it can be seen that the Busan Dong-gu, which is the main body of the project implementation, obtained the approval of the implementation plan on April 1994, and only after January 30, 1996, which was after the execution of the provisional disposition of this case was terminated, the provisional disposition of this case. Thus, if the facts are identical, the plaintiff is still in a position to use and benefit from the land under Article 67 of the Land Expropriation Act before the expropriation of the above land. Thus, in light of the above legal principles, even if there was a prior consultation with the Busan Dong-gu prior to the expropriation of the above land, it cannot be deemed that there was an ordinary loss at the statutory rate equivalent to the above compensation until the execution of the provisional disposition of this case was cancelled, the decision of the court below is somewhat insufficient, but it is just, and there is no error in the law as to the ordinary damage, such as the theory of lawsuit, etc.

3. Regarding ground of appeal No. 2

The issue is that even if the damage equivalent to the statutory rate arising from the failure to receive the above compensation was the special damage, the defendant could have predicted such circumstance at least, but even if the plaintiff could have immediately received the compensation due to the agreement on the part of the land of this case before the execution of the provisional disposition of this case was terminated, as long as there is no record showing that the amount equivalent to the interest at the rate of five percent per annum per annum per annum per annum per the civil law on the above compensation exceeds the occupation profit of the land of this case, it cannot be deemed that the plaintiff suffered special damage by the rate of five percent per annum per annum due to the failure to receive the above compensation in advance. Thus, the argument is without merit without further review.

4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)