가처분 신청의 취하를 구하는 소와 소의 이익 — 가처분채권자와 제3자 사이의 취하계약을 소재로

초록

If the parties agree to withdraw an application for a provisional injunction, but the creditor fails to do so voluntarily, can the other party file an action for performance seeking a judicial order for the expression of intent to withdraw, or can they assert such an agreement directly within the provisional injunction proceedings to effectuate the withdrawal? The key issues regarding this matter will be whether such an action possesses the benefit of lawsuit (standing to sue), or whether alternative relief procedures are available. Furthermore, if such an agreement exists between a party to the judicial proceedings and a third party who is not a party thereto, the party to the withdrawal agreement—despite not being a party to the underlying provisional injunction—has filed a lawsuit seeking performance of that agreement. This raises the question of whether the benefit of lawsuit can be recognized in such a case. This study aims to discuss these issues. It is justifiable to interpret that a third party, who is not the debtor, lacks the benefit of lawsuit to file an action for performance directly against a creditor, seeking a constructive expression of intent to withdraw, based on an agreement to withdraw the application for a provisional injunction concluded between said creditor and the third party. Although such an agreement may be recognized under substantive law as imposing an obligation to act on the creditor to withdraw the application, its effect does not directly bind the court of preservation as a procedural effect of withdrawing preservation proceedings. Furthermore, unless it is possible for the creditor to withdraw the provisional injunction proceedings and its execution through an agreement with a third party who is neither the debtor nor an interested party, such withdrawal cannot be compelled within the preservation proceedings. It is a separate matter that the third party who concluded the above agreement may, as a particular successor or a creditor of the debtor, apply for the revocation of the provisional disposition due to a change of circumstances—which can revoke the provisional disposition and block its execution as a substantive ground through a creditor's subrogation—or claim damages for breach of contract as a private law effect of such agreement.

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