Creditors

An adult Private Teaching Institute (Law Firm Gwangjutong, Attorneys Transferred-jin, Counsel for defendant-appellant)

Gwangju District Court Order 2010Ma434 dated April 27, 2010

1. The decision of the first instance shall be revoked;

2. The creditor shall dismiss the motion of this case.

3. The total cost of application shall be borne by the obligee.

The purport of creditor's motion

Within two (2) days from the date of receipt of the original copy of the instant decision, the obligor would allow the obligee to use his/her laboratories within the campus of Honam University, grant Doshedi (ID) to use the website of Honam University, and allow him/her to use Myeondi (ID), Myeondi (ID) to use the premises of Honam University, and grant Myeondi (ID), Myeonbu (ID) to use Myeondi number on the premises, and do not allow the obligee to perform his/her duties as a full professor of Honam University by giving Myeonu and first semester lectures in January 2010, the obligor would pay 1,000 won per day from the date of receipt to the date of completion

The purport of debtor's appeal

The same shall apply to the order.

1. Progress of this case

The following facts are clear in records:

A. On May 18, 2009, the creditor filed an application for provisional disposition against the debtor on May 18, 2009, the Gwangju District Court 2009Kahap555, and the above court issued a provisional disposition on September 22, 2009, stating that “The debtor shall not interfere with the creditor’s performance of duties as a professor of Honam University (hereinafter “the provisional disposition order of this case”) by hindering entry and exit from using laboratories within Honam University Campus, or closing the laboratory, not granting Dodi (ID) to use the Dodi (ID)’s website site, or by failing to grant Dodi (ID) by changing the phone number without permission or transmitting telephone numbers, and the above decision reached the debtor on September 24, 2009 and became final and conclusive at that time.

B. On March 11, 2010, the creditor filed an application with the debtor for issuance of an indirect compulsory order, such as the purport of the application, with the Gwangju District Court 2010ta-Ma434 on the basis of the instant provisional disposition. On April 27, 2010, the above court rendered a decision to the effect that: (a) accepting part of the above application on the ground that the debtor interferes with or closes the laboratory’s entrance to prevent the use of the laboratories within the campus 5 days after the date on which the original copy of the instant decision was served; (b) Doshe did not grant or delete any ID (ID) allowing access to the website; (c) Doshe did not grant or delete any ID (ID) without permission; and (d) Doshe interfere with the creditor’s performance of duties as a professor of Honam University from the date on which the certified copy of the instant decision was served to the date on which the execution was completed; and (d) the obligor issued a payment of money in proportion to KRW 150 million from the date.

2. Determination

In the case of provisional disposition to determine a temporary position to order a simple omission, which does not require a separate execution, the issue of the execution period, in principle, does not arise. However, in the case of a violation of the order, the obligee may seek the removal or prevention from the time of the violation of the order. Thus, in the case where the obligor violates the provisional disposition order to determine a temporary position to order a omission, the execution period for the removal or prevention shall commence from the time of the act of violation of the order. Thus, in principle, in the case where the obligor violates the provisional disposition order to determine a temporary position to order a omission, the indirect compulsory performance shall be applied within 14 days from the time of the violation, and the application for indirect compulsory performance after the expiration of the execution period is unlawful.

However, it is clear that the provisional disposition order of this case constitutes a provisional disposition to determine a temporary status of an obligor that orders a simple omission, and there is no dispute between the parties that the obligor failed to perform the obligation from September 24, 2009 upon receipt of the provisional disposition order of this case, and thus, the obligee should have filed an application for indirect compulsory enforcement to prevent the act of violation within 14 days thereafter. However, the obligee's application for indirect compulsory enforcement of this case must be filed on March 11, 2010, which clearly shows that the 14 days from the time of the obligor's violation of the obligation. Such application for indirect compulsory enforcement is unlawful since it exceeded the execution period.

3. Conclusion

Therefore, the creditor's application for indirect compulsory performance of this case shall be dismissed, and the decision of the first instance court of this case, which has concluded otherwise, is unfair, so it shall be revoked, and it shall be decided as per Disposition by the creditor to dismiss the application of this case.

Judge Choi Pung-ho (Presiding Judge)