Liability Is Established, but Who Proves Negligence and the Amount of Damage? The Presumption of Negligence in the Execution of a Wrongful Provisional Disposition and the Assessment of Damages

Question

A person seeking damages for loss caused by a tort must, under Article 750 of the Civil Act, assert and prove the other party's unlawful act by intent or negligence and the resulting loss. Where, however, the injurious act has passed through a court trial, or where the amount of loss is difficult to show in figures, this proof becomes particularly burdensome. This paper asks, in two scenes, by what devices that burden is adjusted.

The first scene is an unjustified preservative measure. A provisional attachment or provisional disposition is issued and enforced, before a determination on the merits, on the basis of prima facie showing. Where a provisional disposition prohibiting manufacture and sale on the basis of a utility model right has been enforced and a judgment dismissing the right holder's claim on the merits becomes final, it is asked whether the debtor who suffered loss from the enforcement must also prove the right holder's negligence.

The second scene is the proof of the amount of loss. Where liability for compensation is recognized, as with defects in design drawings, but the parties' assertions and proof concerning the specific amount of loss are insufficient, it is asked whether the court may dismiss the claim on that ground, or whether it must urge proof or determine the amount on the basis of indirect facts.

This article does not determine the liability for compensation or the amount thereof in any particular case. It merely organizes the materials to check and the points at which interpretation diverges, within the range stated by the provisions and the Summary of Decision of the two judgments.

Material to check

First, the basic provisions on liability. Article 750 of the Civil Act provides that a person who has caused loss to another by an unlawful act through intent or negligence is liable to compensate for such loss. Article 763 applies Article 393, etc. mutatis mutandis to damages for loss caused by a tort, and Article 393 provides that liability is limited to ordinary loss, except that for loss arising from special circumstances the obligor is liable only where the obligor knew or could have known of such circumstances.

Second, the provisions on preservative measures. Article 276 (1) of the Civil Execution Act provides for a provisional attachment to preserve compulsory execution against movables or immovables in respect of a monetary claim or a claim convertible into money; Article 300 provides for a provisional disposition concerning the subject of a dispute and a provisional disposition to establish a temporary position in respect of a legal relation in dispute. Article 301 applies mutatis mutandis the provisions on the procedure for provisional attachment to the procedure for provisional disposition. Although the Reference Provisions of Decision 2000Da46184 are indicated by provisions of the Civil Execution Act, the law in force at the time of the act may have been the prior statute depending on the point in time at which the provisional disposition was applied for and enforced, so it is necessary to check the applicable statutes in the full text of the judgment.

Third, the devices connecting security and the merits. Article 280 (2) permits a provisional attachment to be ordered even where the claim to be secured or the grounds for the provisional attachment have not been prima facie shown, if security determined by the court is provided in respect of the loss that may be caused to the debtor by the provisional attachment, and paragraph (3) permits security to be required even where prima facie showing has been made. Article 287 provides that, upon application by the debtor, the court orders the creditor to file an action on the merits within a reasonable period, and that if this is not observed the provisional attachment is revoked. What security was provided at the time of the preservative measure, by what route the action on the merits was filed, and for what reason the judgment became final against the party, are matters to be confirmed in the Records.

Fourth, the provisions on calculation of the amount of loss. Article 202-2 of the Civil Procedure Act provides that, where the fact that loss has occurred is recognized but proof of the specific amount of loss is extremely difficult in light of the nature of the case, the court may determine the amount of damages at a figure it deems reasonable, by comprehensively considering all circumstances recognized from the tenor of the whole of oral argument and the results of the examination of evidence. This provision was newly enacted on March 29, 2016. Article 202 sets forth the principle of free evaluation of evidence, and Article 136 (1) provides for the power of elucidation, by which the presiding judge may urge a party to make proof.

Fifth, the provisions on defects and liability under special Acts. Article 667 (2) of the Civil Act provides that the employer may claim damages in lieu of, or together with, repair of the defect. Article 20 (2) of the Certified Architects Act, included among the Reference Provisions of Decision 2018Da301336, provides that where an architect, in performing Work, causes pecuniary loss to the building owner by intent or negligence, the architect is liable to compensate for such loss.

Sixth, the Records showing the loss. If an unjustified provisional disposition is at issue, materials showing the period of enforcement, whether manufacture and sale were suspended during that period, changes in contracts with business partners, and changes in inventory and sales may be arranged in chronological order. If a defect is at issue, the content of the defect, the scope of repair work and materials on expenditure of costs, quotations and appraisal materials, and the circumstances of termination of contract may be cross-checked.

Possible readings

Concerning proof of negligence, a strict reading holds that, since a preservative measure is issued and enforced after passing through a court trial, negligence cannot readily be recognized in the creditor's having enforced it pursuant to that trial, and that the debtor must prove negligence in accordance with the general principle. The circumstance that the application was based on a right having an outward basis, such as a registered right, may be placed in the direction supporting this reading.

Decision 2000Da46184 took a different path. It held that, although a preservative measure is enforced by a court trial, the substantive existence or non-existence of the claim is left to the action on the merits, and the measure is placed at the creditor's responsibility on the basis of prima facie showing only, so that, if the party has been finally defeated in the action on the merits, intent or negligence is presumed on the part of the enforcing creditor unless there is special rebutting evidence. In a case of a provisional disposition prohibiting manufacture and sale on the basis of a utility model right as well, it held that the presumption of negligence could not be said to have been rebutted, and reversed the judgment of the court below.

How to read the rebuttal of the presumption is the next point of divergence. The Summary of Decision proceeds on the premise that the presumption may be broken where there is special rebutting evidence, but did not specifically enumerate what circumstances constitute special rebutting evidence. There is room to read that the circumstance that the provisional disposition was based on a registered utility model right alone does not rebut the presumption, and there is also room to read that other circumstances of that case were considered together, so it must be read together with the facts in the full text of the judgment.

Concerning the amount of loss, a strict reading holds that the amount of loss is also a fact to be asserted and proved by the plaintiff, so that absent such proof the claim can only be dismissed. Decision 2018Da301336 did not accept this reading, holding that, where liability for damages is recognized, the court must, even where the parties' assertions and proof concerning the amount of loss are insufficient, actively exercise the power of elucidation to urge proof and, as the case may be, examine and determine the amount of loss ex officio (by the court's own authority). In a case involving defects in design drawings, it reversed the judgment of the court below, which had dismissed the claim on the ground that there was no assertion or proof concerning the amount of loss.

The scope of application of Article 202-2 is also a passage where readings diverge. Considering only the wording of the provision, it may be unclear to what damages it applies; however, Decision 2018Da301336 held that this is a provision of a general nature which, unless otherwise specially provided, applies not only to damages for non-performance of an obligation or for a tort but also to damages under special Acts. It further explained that this provision reflects the case law to date, so it is read that the legal principle of determining the amount of loss on the basis of indirect facts was used in case law even in cases prior to its enactment.

The two devices target different requirements. The presumption of negligence concerns negligence, which is a requirement for the establishment of liability, whereas Article 202-2 and the legal principle of elucidation concern the amount of loss. They are common in that neither is read as exempting even the proof of the fact that loss occurred. Whether the two devices may be used together in the case of losses for which proof of the amount is difficult, such as business losses during the period of enforcement of a provisional disposition, is a matter for the reader to determine after aligning the Records.

What the decisions held

Supreme Court Decision 2000Da46184 decided September 24, 2002 held as follows: "Although a preservative measure such as a provisional attachment or provisional disposition is enforced by a court trial, whether the claim exists in substance is left to the action on the merits, and the matter is placed at the creditor's responsibility on the basis of prima facie showing only; accordingly, where the enforcing creditor has been finally defeated in the action on the merits after such enforcement, intent or negligence is presumed on the part of the enforcing creditor with respect to the loss suffered by the debtor due to the enforcement of that preservative measure, unless there is special rebutting evidence, and therefore the creditor is liable to compensate for the loss caused by such unjustified enforcement." In a case where, after a provisional disposition prohibiting manufacture and sale on the basis of a utility model right had been issued, a judgment dismissing the utility model right holder's claim on the merits became final, it held that the presumption of negligence could not be said to have been rebutted, and reversed the judgment of the court below and remanded the case.

Supreme Court Decision 2018Da301336 decided March 26, 2020 held as follows: "Where liability for damages is recognized, the court must, even where the parties' assertions and proof concerning the amount of loss are insufficient, actively exercise the power of elucidation to urge proof, and, as the case may be, examine and determine the amount of loss ex officio (by the court's own authority)." As to Article 202-2 of the Civil Procedure Act, it stated: "Unless otherwise specially provided, this is a provision of a general nature that applies not only to damages for non-performance of an obligation or for a tort but also to damages under special Acts," and even after urging proof, it stated: "if the specific amount of loss cannot be ascertained, the amount of loss may be recognized by comprehensively considering the indirect facts that form the basis for calculating the amount of loss." In a case where, after terminating a design and supervision contract, damages were sought on the ground of defects in the design drawings, it reversed the judgment of the court below and remanded the case.

Practical checklist

This item is not advice but a bundle of questions that may be asked when comparing the Records. First, the outcome on the merits may be asked. Whether the right preserved by the preservative measure and the subject matter of suit in the action on the merits are the same, for what reason the action on the merits ended in a final defeat, and when it became final, may be confirmed from the judgment text.

Second, the materials for special rebutting evidence may be asked. Whether the Records contain the prima facie showing materials held by the creditor at the time of applying for the preservative measure, expert opinions received or determinations of other agencies before and after the application, and changes in circumstances during the progress of the action on the merits, may be arranged in chronological order. Whether this material is sufficient to rebut the presumption must be compared against the standard in the full text of the judgment.

Third, the basis for the amount of loss may be asked. Whether there are receipts and contracts for costs actually incurred, appraisal results, and transaction materials from before and after the period of enforcement; whether the plaintiff asserted a specified amount of loss; and whether a record that the presiding judge urged proof appears in the minutes of oral argument, may be confirmed.

Fourth, indirect facts may be asked. How the indirect facts cited in Decision 2018Da301336 — such as the relationship between the parties, the circumstances in which the non-performance of an obligation or the tort gave rise to the loss, the nature of the loss, and the circumstances after the loss occurred — appear in the Records may be organized item by item. This is only a list of materials to check, and the conclusion is drawn by the reader.

Glossary

Preservative measure is a term that collectively refers to the provisional attachment and provisional disposition made before a judgment on the merits in order to preserve the enforcement of a right or to establish a temporary position (Articles 276 and 300 of the Civil Execution Act). Decision 2000Da46184 explained that a preservative measure is placed at the creditor's responsibility on the basis of prima facie showing.

Presumption of negligence is a term used to refer to a structure whereby, once certain facts are proved, negligence is deemed to exist, but the other party may break this by rebutting evidence. In Decision 2000Da46184, the final defeat on the merits became the underlying fact.

Power of elucidation is the power of the presiding judge to question a party and urge proof in order to clarify the state of the litigation (Article 136 of the Civil Procedure Act). Decision 2018Da301336 held that this must be actively exercised where proof of the amount of loss is insufficient.

Indirect fact is a term used to refer to a fact which does not directly prove a principal fact such as the amount of loss, but from which its existence or extent may be inferred. Decision 2018Da301336 held that where the specific amount of loss cannot be ascertained, the amount of loss may be recognized by comprehensively considering indirect facts.

Sources and limitations

The source of the provisions is the current texts on the Korea Law Information Center (Articles 393, 667, 750, and 763 of the Civil Act; Articles 276, 280, 287, 300, and 301 of the Civil Execution Act; Articles 136, 202, and 202-2 of the Civil Procedure Act; and Article 20 of the Certified Architects Act), and the date of comparison is October 16, 2026. Article 202-2 of the Civil Procedure Act is a provision newly enacted on March 29, 2016, and Article 667 (2) of the Civil Act is the wording as amended on December 30, 2014, so when reading on the basis of the statutes in force at the time of the act, the amendment history must be separately confirmed.

The judgments were compared against the Holdings, Summary of Decision, and order of the texts on the Korea Law Information Center. The full text of the reasons for judgment was not compared, so facts such as the product subject to the provisional disposition, the period of enforcement, the content of the defect, and the amount claimed are not written in this article.

The specific provisions of the statutes applied to the preservative measure at the time of Decision 2000Da46184, the relevant provisions of the Utility Model Act, and the provisions on security in the Civil Procedure Act concerning the exercise of rights by the holder of the security interest were not compared in this article.

Points left open

Decision 2000Da46184 took the final defeat on the merits as the starting point of the presumption of negligence. Whether the same presumption operates where only part of the claim was lost on the merits, where the action on the merits ended in settlement or withdrawal, and where the preservative measure was revoked due to a change of circumstances, is a question not addressed by the Summary of Decision.

In the case of rights such as intellectual property rights, for which separate proceedings are conducted to contest the validity of the right, there may be cases in which a right that had a valid appearance at the time of the provisional disposition later loses its validity. Whether such circumstances may constitute special rebutting evidence is a passage requiring separate comparison of judgments in the relevant field.

Decision 2018Da301336 held that the court must, as the case may be, examine and determine the amount of loss ex officio (by the court's own authority). In what cases ex officio examination is required, and how far the court's role extends where a party does not apply for an appraisal of the amount of loss, remain to be further organized.

Whether the cases of being extremely difficult referred to in Article 202-2 and the cases of being difficult in light of the nature of the case stated in the Summary of Decision constitute the same threshold, and by what standard an amount determined under this provision is reviewed on appeal, also remain open questions.

When to reconsider

If the tort provisions of the Civil Act, the provisions on preservative measures and security in the Civil Execution Act, or Article 202-2 of the Civil Procedure Act are amended, or if a new determination of the Supreme Court concerning the presumption of negligence for an unjustified preservative measure or the calculation of the amount of loss is handed down, this paper will be rewritten.

At that time, the premises of the presumption of negligence and the grounds for its rebuttal, and the role of the court in calculating the amount of loss, will be reorganized within the range stated by the Holdings and Summary of Decision of the new judgment.

Statutes referred to

• 민법 제393조, 제667조, 제750조, 제763조
• 민사집행법 제276조, 제280조, 제287조, 제300조, 제301조
• 민사소송법 제136조, 제202조, 제202조의2
• 건축사법 제20조

Decisions referred to

• 대법원 2002. 9. 24. 선고 2000다46184 판결 · Decision ledger
• 대법원 2020. 3. 26. 선고 2018다301336 판결 · Decision ledger

Verification status

The cited provisions (Articles 393, 667, 750, and 763 of the Civil Act; Articles 276, 280, 287, 300, and 301 of the Civil Execution Act; Articles 136, 202, and 202-2 of the Civil Procedure Act; and Article 20 of the Certified Architects Act) were compared against the current texts on the Korea Law Information Center as of October 16, 2026. The cited judgments (Supreme Court Decision 2000Da46184 decided September 24, 2002; Supreme Court Decision 2018Da301336 decided March 26, 2020) were compared against the Holdings, Summary of Decision, and order of the judgment texts on the Korea Law Information Center; the full text of the reasons for judgment was not compared.