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Some Suggestions for the Amendment to the Civil Execution Act

  • DONG-A LAW REVIEW
  • 2010, (49), pp.343-370
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Daeseong Kang 1

1경상대학교

Accredited

ABSTRACT

It has been several years since the Civil Execution Act was enacted. The civil execution procedure relates to the citizen's private right protection deeply. During process of enacting this act, although various discussions appeared, but we have recognized that there are some irrational articles in the civil execution act. Therefore, when this act applied to actual cases, some inadequate problems which related to the citizen's private right protection occurred. So the amendment to the civil execution act would be needed. I would suggest some particulars for the amendment to this act in this paper as follows. The first, judgment which contains a declaration of provisional execution in article 56 should be eliminated, because this executive title is not necessary furthermore. When the amendment to the part of Ⅴ(demanding procedure) of civil procedure act was done in 1990, but the amendment to the payment order system related with demanding procedure deeply, was not performed. For this reason, judgment which contains a declaration of provisional execution exists until now. This executive title should be eliminated because this one is not necessary in these days. The second, I suggest the elimination of article 17 for the next two reasons. One is that the article 17 violates the principle which immediate appeal is permitted in the case of only individual permitting article exist. Namely, article 17 violates the principle that immediate appeal is available in the particular permitting articles. The other is that when objection against execution is not permitted in the court, disobedience way may not be available, but this situation gives rise to the violation of petition for the judge which preserved in constitutional law as the basic right. The third, I have a question that substantial reasons may be available in the objection against the ruling on commencing a security auction procedure. Article 265 permits the substantial reasons of the nonexistence or extinguishment of a security right as grounds for an objection against the ruling on commencing a security auction procedure. I think that article 265 dose not accord with the general objection against civil execution, so I also suggest this article should be eliminated. General opinion said that the permission of substantial reasons in article 265 is result from the nonexistence of executive title in security auction procedure. But this explanation may not be acceptable, and illogic I think. If according to the article 265, the conflict to judges or judge with objection ruling each other may be occurred. So the improvement of this article should be needed. The fourth, the expression of supreme court regulation for the judicial clerk(‘Rechtspfleger’) is too difficult to understand. This difficult raised from that the regulation enacted after civil execution act. So if the chance to the civil execution act amendment will be performed, the articles of this regulation should be transformed to the civil execution act. Generally, rules should be familiar to citizens, therefore the expressions of law must be more easier to the citizens. The amendment to the civil execution act must be performed along this principle.

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