300 / 521
In the same Article, it is stipulated that the party who requests a
preliminary injunction has to specify explicitly the grounds and the
type of preliminary injunction in their petition, and has to prove why
they are justified with respect to the merits of the main case. The aim
of this provision is to ensure that the party requesting a preliminary
injunction examines and clearly establishes the subject of, grounds for
and type of injunction before making their request.
The Notion of “Approximate Proving”
The notion of “approximate proving”, which was acknowledged
by legal scholars, is mentioned in the CCP with a special objective. As
is known, if it is not clearly regulated by law or it is not necessitated
by the situation, the judge must reach a complete proving for the case
necessarily. Instead of a total conviction, a probable conviction is
deemed to be enough with respect to reduced level of proof. An
approximation is determined as sufficient for provisional legal protec-
tion since there are circumstances, such as not having enough time to
listen to the other party, or to examine all evidence in detail.
In the case of an approximate proving, judge admits that the claim
for preliminary injunction is most likely true, but he also shall not
ignore the fact there is a slight possibility for the opposite situation.
Thus, courts generally demand that the party requesting a preliminary
injunction deposit a guarantee in consideration for the possibility that
the requesting party might be wrong.
Guarantee
Pursuant to Article No. 392 CCP, the party who requests a prelim-
inary injunction is obliged to provide a guarantee in order to pay the
damages sustained by the other party or third parties, in case the pre-
liminary injunction is later determined to be unjust. However, there is
an exception to this rule. The court may decide not to take a guarantee,
by stating its grounds explicitly; if the situation requires granting the
decision without guarantee or the request is based on an official docu-
ment, to prove the claim.
284
NEWSLETTER 2014