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The Remedy for the Claim Infringement by third Party

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2013, 1(2), pp.31-69
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

HyeonSon, Kim 1

1호서대학교

ABSTRACT

In case the tort is established by the claim infringement by third party, the arguments that whether creditor’s compensation for damages are asked for the ex-post remedies, is almost cleared. As an ex-ante remedy, the claim for removal of disturbance, a relative right of claim unlike property right, can be recognized in the case of claim is invaded. As of current court opinion and scholarly dogma coincidently alleged that the claim for removal of disturbance is not allowed in the right of claim because it is not recognized countervailing even it is discussed with former digress. In addition, precautionary and preliminary injunction to make temporary status under the civil execution act can be taken but Korean court did not accept this action by the reason of no legal ground. If it is so, the injunction that is precautionary and preliminary remedy which arising from tort law may be imaginable. For this possibility, majority opinion affirmed this allegation even statute is not provided, and the claim infringement by third party is also acknowledged. Only, a little argument aroused concerning whether such an argument is approved unlimitedly under the affirmation. The ultimate goal of the right of prohibition, each nation’s trend of court decision and legislation case, judge’s discretion in motion case, violation of good faith exercising of the right of prohibition or considering the control of abuse of rights, there is no need to admit these right because even if unlimitedly allowed this right of legal ground, it will not be a big issue.

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