임시의 지위를 정하는 가처분과 관련하여 잠정명령 제도의 도입에 관한 연구

A Study on Transplant of Temporary Restraining Order System in Terms of Provisional Disposition Preserving Status Quo

Article 304 of Civil Enforcement Act in Korea prescribes that, in the judgment on a provisional disposition to fix status quo, “the date of trials or the date of hearings when the debtor can attend shall be held: Provided, That the same shall not apply when there exist any situations under which the purpose of provisional disposition is not attainable, if an examination is effected by opening such dates.” However, the proviso of Article 304 of the Korean Civil Enforcement Act does not play a role in maintaining status quo before trial or hearing can be held for the opposing party but it serves to order ex parte provisional disposition. Also, in the Korean practices, the proviso has never been applied. Temporary restraining order, which contributes to preserve the status quo before hearings or trials can be held for the parties in opposition, need to be adopted in cases where defamatory documents can be distributed before hearings or trials can be held. Another good illustration might be the situation where intellectual property rights was infringed and the infringing goods can be disposed or destructed before hearings or trials can be held. Temporary restraining order can be distinguished from Mareva injunction, Anton Piller order, and preliminary injunction or provisional disposition. This Article mainly focuses on temporary restraining order in America because Germany and Japan do not have it. This Article delves into section 65 of Federal Rules of Civil Procedure in America and provisions related to temporary restraining order in California, Florida, Illinois, New York, and Texas. In this regard, this Article explores the relevant case law. Afterwards, the Article identifies the issues which can be raised when we adopt the temporary restraining order, and proposes my approach which can be easily compatible with the Korean legal system.