关于韩国民事执行制度的外文文献

System of Civil Coercion Determent in the Korea

(1) The property of the debtor express system

When the "property of the debtor expressly system means that the debtor fails to perform has valid judgment determined the payment of a monetary obligation, the creditor may make explicit the debtor's property relations apply to the court, and as has been seeking to enforce the debtor shall clearly based on the express order issued by the court their existing property, and in the case of an additional express the real estate within one year before the command is issued when performed and paid transfer of the case within two years of the implementation of the free disposal of assets. debtor's property express system, designed to overcome the creditor does not check to the implementation of the property can not be achieved malpractice enforced. "expressly system in addition to the debtor's property the debtor's property survey functions, but also has to perform a deterrent function.

On the one hand, in order to force compliance with the property of the debtor's express command, Korea Civil Execution Act establishes the detention, imprisonment and criminal fines sanctions person list published in debt and other non-performance implementation of deterrent measures. Unjustified detention applies to the debtor failed to appear at a specified maturity express, or refuse to raise property directory, or refuses to be sworn and other circumstances, the maximum period is 20 days. System is a reflection of detention on deterrent function of mainly two: First, no decision on punishment system. According to Article 30, paragraph 3, of the South Korean civilian implementation of the rules, the referee after the detention custody is decided before the program starts to make, as long as the debtor explicit catalog of property, the court shall make no decision on punishment. Thus, the ultimate goal of detention is not to punish debtors, but its execution deterrence applied to the debtor to conscientiously fulfill the express command property. Second, the early release system. According to the provisions of Article 68, "the Korean Civil Execution Law," the debtor, after being detained, as long as the application performing property express command, and on days the court expressly made to reassign property catalogs and oath, the court should immediately revoke the detention ruling , ordered the release of the debtor, can be seen early release system has a clear tendency to perform deterrence. The criminal penalties apply to the case of providing false list of assets, which the court may on the debtor to 3 years of imprisonment or a fine of 5 million won or less. Sanctions of imprisonment or a fine is an ex post punishment means, although its function of providing false emphasis on property directory punishment, but the presence of imprisonment or a fine of sanctions against the debtor sufficient to create a deterrent, prompting truthfully submit its list of property. On the other hand, the property also express command to force the debtor to fulfill its own obligations to perform deterrence function. Property explicit command Once implemented, both in person and property of the debtor, will all adversely. First, the general per capita reluctant to own property information public, while property contrary to the express wishes of precisely this because, according to the provisions of Article 67 of the Korea Civil Execution Law, "to apply for the creditor to enforce the debtor may apply for property viewing or copying directories . " Secondly, the debtor will be disclosed after their property was a time-consuming job. "When the debtor for property expressed no objection to the application or command rejected his objection to the application." In accordance with Article 64 of the Korea Civil Execution Law, in "The court expressly designated as the property of maturity", the debtor shall submit property inventory in line with statutory

requirements. Again, if the debtor does not meet the requirements of property express Civil Execution Law, will be subject to detention and other aspects of risk person list of sanctions of imprisonment, fines and publish non-performance debt; and finally, the most critical person, debtor after their public property, which The result will no different with the performance of the debt on their own. Considering the above unfavorable debtor Results based on its own property, open to faithfully execute enforcement agencies, not as self-fulfillment of obligations in order to avoid unnecessary losses suffered. In addition, in order to play the property to the debtor to conscientiously fulfill the express program execution deterrence function debt, the Korean Civil Execution Act also provides support two measures: First, the early release system is also applicable to the case of the obligor's own. According to the Korean Civil Execution Act 68 provisions, because they do not fulfill the explicit command detention punishment property debtors, as long as the proposed repayment of creditors to apply for debt instruments of proof, the court also ruled that the detention should be immediately withdrawn, releasing the debtor. Second, the provision of property explicit extension system. In accordance with Article 64, the debtor's property in accordance with the express command specifies the maturity to attend, as long as it can be declared within three months to repay the debt, the court should also be extended to the property expressed maturity in the range of three months, as long as the debtor in new maturity proves to have two-thirds of the debt repayment, within one month may be extended expressly maturity.

(2) does not fulfill obligations list system

"Do not perform the debt list system refers to the debtor in the payment of money order judgment take effect six months does not perform the obligation or property express command, the creditor may apply to the court the debtor posted does not fulfill obligations on the list. If the court considers the application of creditors justified, then make an order published list does not fulfill obligations and to be filed, then serve a copy of the debtor's domicile of city, district, county and township (town). Since the law provides that any person can apply to view or copy the list, therefore the debtor in the economy, life will therefore be very limited. "debt does not fulfill person list system is the implementation of a deterrent mechanism in 1989 when Korea amend the Civil Procedure Law, referring to the German debtor name list of the new regime. Although this system and property of the debtor express system there is a close link, but it still has an independent execution deterrent function. Specifically, according to the provisions of the Korean Civil Execution Law 7O ter, does not fulfill the debt list system is not only posted disobedience property express command of the debtor, and then as long as the scope of implementing the right source is identified or the production of non-compliance within six months after the implementation of the right source the debt situation, whether express command release property, can apply for non-performance person list posted on debt. Since the debt will not fulfill the debtor's list registration name, goodwill, credit, etc., causing many adverse effects, in order to avoid or eliminate this adverse effect, the debtor was forced to self-fulfillment of his obligations or consciously obey the court's express command. Visible, who does not fulfill obligations to perform list system is a typical means of deterrence.

(3) non-performance of obligations damages system

There are damages on deterrent measures on Korean law. For the debtor fails to perform the obligations, the creditor can pursue their liability for damages, the debtor form of psychological pressure to pay off its own debt. In South Korea on deterrent mechanisms, there are two types of

damages: First Executive Compensation. According to Article 261 of the Civil Execution Act provisions, when the debtor fails to perform non-monetary obligations pursuant to court orders, in direct execution and execution can not substitute, as long as the nature of the debt can be applied to the implementation of deterrence, the court may order the debtor to take damages The implementation of a deterrent, forcing it to automatically perform the debt. When the amount of the actual loss is higher than the amount of compensation the court determines that the difference creditors can seek compensation separately, namely to obtain damages through civil means of relief. Second, civil damages. According to the provisions of the Civil Code Article 389, paragraph 4, of the Republic of Korea, regardless of whether the debt can be forced by the court to perform, or to perform on behalf by a third party or by the court to the debtor's expense exclude its omission in violation of debt, as long as the debtor defaults, the creditor It may request for damages pursuant to section 1.2 of the Civil Code Part III. And implementation of compensation applies only to perform a non-monetary claims of different civil damages also apply to the enforcement of monetary claims. Since civil damages debtor will bring the same psychological pressure, helping to force the debtor to perform the debt on their own, and thus also belongs to the implementation of deterrent measures. However, civil damages has certain limitations, on the one hand, the function of civil damages regime of emphasis on debt to make up for losses; on the other hand, the nature of his request for compensation for the damage, the debtor's liability for damages accountability should Restart the civil trial proceedings.