Injunction

An injunction is an equitable remedy in the common law contries. In Korea, it amounts to provisional disposition (가처분명령/假處分命令) under the Civil Execution Act (민사집행법/民事執行法). The injunction is rendered in the form of a court order that requires a party to do or refrain from doing specific acts. A party that fails to comply with an injunction faces criminal punishment (contempt of court) or civil penalties.

Key words
preliminary injunction, temporary restraining order, irreparable damage, equity remedy, contempt of court

Rationale for Injunction
This injunctive power to restore the status quo ante; that is, to make whole again someone whose rights have been violated, is essential to the concept of fairness (equity). For example, money damages would be of scant benefit to a land owner who wished simply to prevent someone from repeatedly trespassing on his land.

Korean companies are usually enjoined in the United States for the reasons of intellectual property right infringement or suspension of letter of credit proceeds.

Types of Injunctions
In the United States, except the preliminary injunction similar to the provisional disposition in Korea, there are temporary restraining orders, permanent injunctions and other kinds of injunctive orders.

Preliminary Injunctions
A preliminary injunction, in equity, is an injunction entered by a court prior to a final determination of the merits of a legal case, in order to restrain a party from going ahead with a course of conduct or compelling a party to continue with a course of conduct until the case has been decided.

If the case is decided against the party that has been enjoined, then the injunction will usually be made permanent. If the case is decided in favor of the party that has been enjoined, the injunction will usually be dissolved or dismissed.

In the United States, the party seeking the preliminary injunction must demonstrate all four things together:
 * 1) There is a substantial likelihood of success on the merits of the case.
 * 2) They face a substantial threat of irreparable damage or injury if the injunction is not granted.
 * 3) The balance of harms or justice weighs in favor of the party seeking the preliminary injunction.
 * 4) The grant of an injunction would serve the public interest.

Temporary restraining orders in the U.S.
A temporary restraining order (TRO, 임시조치/臨時措置) may be issued for short term. A TRO usually lasts while a motion for preliminary injunction is being decided, and the court decides whether to drop the order or to issue a preliminary injunction.

A TRO may be granted ex parte, without informing in advance the party to whom the TRO is directed. Usually, a party moves ex parte to prevent an adversary from having notice of one's intentions. The TRO is granted to prevent the adversary from acting to frustrate the purpose of the action, for example, by wasting or hiding assets (as often occurs in divorce) or disclosing a trade secret that had been the subject of a non-disclosure agreement.

To obtain a TRO, a plaintiff must prove four elements similar to the above preminary injunction.

Permanent Injunctions
A permanent injunction is a court order that a person or entity take certain actions or refrain from certain activities.

A permanent injunction is typically issued once a lawsuit over the underlying activity is resolved, as distinguished from a preliminary injunction, which is issued while the lawsuit is pending.

Other kinds of injunctive orders
Many states have injunction laws that are written specifically to stop domestic violence, stalking, sexual assault or harassment and these are commonly called restraining orders, orders of protection, abuse prevention orders, or protective orders.

In relation to Article 23 (Suspension of Execution) of the Administrative Procedure Act, the Constitutional Court rendered a noteworthy decision 2006Hun-Sa754 on February 23, 2006.

The requirements of injunction for the constitutional appleal are:
 * 1) The court decision on the subject matter shall not be illegal or apparently groundless;
 * 2) There must be grave disadvantage to the applicant;
 * 3) It is an emergency case where the applicant cannot wait for the court decision on the subject matter;
 * 4) In view of the comparison of relevant interests based on the double hypothesis, it is necessary to preserve the applicant’s position; and
 * 5) The injunction shall not be gravely contrary to the public welfare.