[1] In a case where a breach of duty is continued while a provisional disposition ordering a continuous omission, upon which a decision of indirect compulsory performance was issued, the debtor has suspended the act and takes appropriate measures to prevent the future breach of duty, or the prohibition period prescribed in the provisional disposition has expired, whether the debtor is exempted from the obligation to pay compensation for the breach of duty after the order of indirect compulsory performance is issued (negative)

[2] Whether a claim can be asserted as a ground for objection that the debtor did not violate his/her duty of non-performance in a lawsuit seeking the exclusion of the enforcement of the decision of indirect compulsory performance against the obligation of non-performance (negative)

[1] Even if an obligor has suspended an act and took appropriate measures to prevent future breach of duty while a decision of indirect compulsory performance based on a provisional disposition ordering continuous omission was issued, or the prohibition period stipulated in the provisional disposition has expired, such circumstance alone does not necessarily mean that the effect of provisional disposition that was conducted after the issuance of the order is retroactively extinguished, and thus, the obligor is not exempt from the obligation to pay compensation for a violation that was committed after the issuance of the order of indirect compulsory performance, and the obligee is entitled to enforce compulsory execution to collect compensation corresponding to the violation.

[2] In order for a creditor to enforce a compulsory execution by making a decision of indirect compulsory performance against a non-performance obligation as an executive title, an execution clause should be obtained. Since a debtor’s breach of duty constitutes a condition for the enforcement of a decision of indirect compulsory performance against a non-performance obligation, an obligee may obtain an execution clause proving the fulfillment of the condition under Article 30(2) of the Civil Execution Act. Whether the fulfillment of the condition, which is the requirement for the grant of execution clause, is a matter to be asserted and examined in a lawsuit of objection against the grant of execution clause related to the grant of execution clause or the grant of execution clause, and it is not a matter to be deliberated in a lawsuit of objection seeking the exclusion of executive force held by the executive title on the ground of an objection raised against the claim indicated in the executive title. Therefore, in a lawsuit of objection to seek the exclusion of executive force of the decision of indirect compulsory performance against a non-performance obligation, the claim that the debtor did

[1] Articles 261 and 300 of the Civil Execution Act / [2] Articles 30(2), 33, 44, 45, 261, and 300 of the Civil Execution Act

Plaintiff 1 and two others (Law Firm Sejong, Attorneys Kim Sung-sung et al., Counsel for the plaintiff-appellant)

KC Co., Ltd. (Law Firm Dongin, Attorneys Leeh-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Na34004 decided September 30, 2011

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the collection of damages under a decision of indirect compulsory performance

While a provisional disposition ordering a continuous non-performance of obligation has been issued, the debtor has suspended the act and has taken appropriate measures to prevent the violation of obligation in the future, or has expired the prohibition period set out in the provisional disposition, even though such circumstance alone does not mean from the beginning that the effect of the provisional disposition violation committed after the issuance of the indirect compulsory performance order does not retroactively cease to exist. Thus, the debtor is not exempt from the obligation to pay compensation for the violation of obligation after the issuance of the indirect compulsory performance order, and the creditor is able to enforce compulsory execution to collect compensation corresponding to such violation.

According to the reasoning of the judgment of the court, the plaintiffs retired from the defendant 2, who was in charge of design and other duties, and agreed to protect the defendant's trade secrets by using confidential information of the defendant 1 to 3 years, or by violating the defendant's position such as adviser, adviser, and committee member, etc. However, the plaintiffs entered the defendant's 1 to 0-day 20-day Seoul Central District Court 2008Kahap3863, Oct. 30, 2008, and the defendant applied for provisional disposition 1 to the defendant 20-day Seoul Central District Court 10-600-600-60-60-60-60-10-60-60-60-70-70-70-10-60-70-70-10-70-70-10-60-70-10-70-10-70-70-10-10-7

Examining the above facts in light of the legal principles as seen earlier, it is justifiable for the court below to have determined that the damages already incurred due to the violation of the duty of prohibition of transfer ordered in the provisional disposition order of this case even after the period of obligation under the provisional disposition order of this case has expired, may be subject to compulsory execution by accepting the execution clause, and there is no error in the misapprehension of legal principles as to the collection of damages due to the decision of indirect compulsory performance as

The Supreme Court Decision 2002Du2444 Decided January 15, 2004 cited as the grounds of appeal by the plaintiffs did not implement the disposition of refusal despite the administrative agency's duty to revoke the disposition of refusal. Thus, the other party filed an application for indirect compulsory performance pursuant to Article 34 of the Administrative Litigation Act, and the administrative agency's obligation to act was revoked after the lapse of the period of the duty of refusal and fulfilled the duty of act by cancelling the disposition of refusal. Thus, it cannot be invoked

2. As to the assertion of mistake of facts following the incomplete hearing on whether the plaintiffs violated their duty

In order for a creditor to enforce a decision of indirect compulsory performance on a duty of omission to enforce a compulsory execution with its executive title, an execution clause should be obtained. Since a debtor’s breach of duty constitutes a condition for the enforcement of a decision of indirect compulsory performance on a duty of omission, an obligee may obtain an execution clause proving the fulfillment of such condition under Article 30(2) of the Civil Execution Act.

In addition, the issue of whether the condition, which is the requirement for granting the execution clause, is a matter to be asserted and examined in a lawsuit of demurrer against the grant of execution clause related to the grant of execution clause or in a lawsuit of objection against the grant of execution clause, and it is not necessary to be deliberated in a lawsuit of objection to a claim seeking the exclusion of executive force held by the executive title on the ground of an objection raised against the claim indicated in the executive title. Therefore, in a lawsuit of objection to a claim seeking the exclusion of executive force of the decision of indirect compulsory execution against the obligation of omission, the argument that the debtor

The plaintiffs asserted that there was a mistake of facts due to incomplete deliberation on whether the court below violated the duty of prohibition of change of occupation under the decision of indirect compulsory performance of this case and that the plaintiffs violated the duty of prohibition of change of occupation within the period of prohibition of change of occupation. However, in light of the above legal principles, the issue of whether the plaintiffs violated the duty of prohibition of change of occupation under the decision of provisional disposition of this case constitutes a condition for indirect compulsory performance based on the decision of provisional disposition of this case ordering the duty of prohibition of change of occupation should be deliberated in the lawsuit of granting execution clause related to the execution clause of provisional disposition of this case, and it is not a matter to be deliberated in the lawsuit of objection of this case seeking the exclusion of the execution clause of provisional disposition of this case. Therefore, although it is inappropriate for the court below to deliberate and determine whether the plaintiffs violated the duty of prohibition of change of occupation under the decision of indirect compulsory performance of this case, it is legitimate to reject the plaintiffs' claim,

3. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Park Poe-dae (Presiding Justice)