부당 보전처분을 이유로 한 손해배상 - 대법원 2023. 6. 1. 선고 2020다242935 판결 -

Abstract

If the creditor of a preservative measure loses the litigation on the merits, the creditor's intention or negligence in executing the preservative measure is presumed. This is the established position of our precedents. This precedents’ position is basically reasonable because preservative measures are made under the sole responsibility of the creditor based on an unilateral vindication by the creditor. Unless there is special evidence to the contrary, the creditor who loses the litigation on the merits is responsible for compensating the debtor for the damages suffered by the execution of the wrongful preservative measure. However, it is necessary to approve the rebuttal of presumption of the creditor’s intention or negligence more flexibly considering the concrete validity of each case. Especially when there are specific circumstances in which it is difficult to attribute the execution or maintenance of preservative measures solely to the creditor, it is not appropriate to place the responsibility entirely on the creditor. Examples include: Where legal assessment is difficult due to complex facts. Where the result of the litigation on the merits is overturned by a higher court due to such difficulties. Where it is difficult to determine whether it is due to a gap in facts or a gap in legal evaluation because the facts and the legal evaluation ore the interpretation of the law are closely intertwined. In the case of the the Supreme Court Decicion, the complex factual situations involving the amount of damages against the infringement of intellectual property rights led to divergent conclusions of the lower and higher court. The conclusions were different not because the facts that underlie the judgments were decisively changed, but because there were differences in legal evaluation or interpretation of the same facts. In these cases, it would be appropriate to consider that there is a substantial reason to rebut the presumption of the creditor's intention or negligence. There is a clear need to warn creditors to prevent wrongful preservative measures and to make creditors bear the damages from them. However, it is also undesirable to make the creditors hesitate to exercise their rights even when there is significant reason to believe that they are justified. As the creditor’s responsibility for wrongful preservative measures is imposed from the perspective of fairness, when and to what extent the responsibility should be imposed must be determined by fully considering the concrete facts and special characteristics of each case.