권리성의 인정과 회복할 수 없는 손해— 대상결정 : 대법원 2010. 8. 25. 자 2008마1541 결정 —

초록

This Korean Supreme Court’s ruling on a business interest is estimated to create a new kind of right by conceptualizing the business interest as right(like right on the business method). The Court continues ruling in the same way on the similar subject matters since then. The Court has taken very firm stance to limit injunctive protection only to the victim who is interfered with her/his proprietory interest and the like(opt-in protection). After full lengthy analysis on the above ruling I insist on the crucial change of the approach from opt-in protection to opt-out protection by endowing almost all aggrieved victim with injunctive protection. By doing this, our private law enforcement system may enhance the total social welfare more allocative-efficiently. The Court’s ruling wrongfully recognized irreparable injury on the business interest as a kind of requirement of injunctive relief. Irreparable injury rule had been molded in the medieval England era when its court system was divided with two, the king’s courts and the equity court, and has been almost given up. Injunctive relief has been misunderstood as a legal effect of damages in Korea for the influence of the Japanese legal scholarship. The Korean Ministry of Justice proposed several times bills including the relevant provisions based on the above misbelief. I insist that the Court should not review the injunctive cases requiring to show irreparable injury on the interest. Instead the Court should try to find capability, necessity, and adequacy on the cases before endowing the aggrieved party with injunctive protection.

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