집행증서의 하자와 신의칙

• 발행기관: 한국민사소송법학회
• 저자명: 조상희
• 간행물 정보: 『민사소송』제15권 제1호, 19~43쪽, 전체 25쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.05.30

영문 초록

The Article 56, Item 4 of Civil Execution Act provides that the Notarial Deed prepared by a notary public in respect of the claims aiming at the payment of specific amount, or at the payment of a specific quantity of substitute goods or securities, and which states the purport of giving a consent of the debtor to the compulsory execution be one of the execution titles. But considering the procedures of making the Notarial Deed with executory force, there are possibilities of null and void Notarial Deed with executory force which has not legal delegation from the debtor. The creditor with malice can take the execution procedure by the null and void Notarial Deed with executory force, since the execution agency can not know the deficit of Notarial Deed with executory force. As the result, the 3rd party will be able to obtain the debtor,s property by the execution procedure. Even in these circumstances, the debtor can revoke all the results of execution procedure, because the execution title, i.e., the Notarial Deed with executory force, is null and void. But a few judgments of the Supreme Court do not allow the debtor s demurrer suit, on the ground that it is against the Good Faith principle or estoppel. Mainly the debtor did not take the procedure of provisional disposition which order to suspend a compulsory execution with or without having the security furnished. Because a lawsuit of demurrer shall not affect the continuation of a compulsory execution. I explored the facts and grounds of those judgments and proposed that, in principle, the debtor s demurrer suit should not be prevented by the ground of Good Faith principle. Though the debtor did not take the procedure of suspending the execution, the null and void Notarial Deed with executory force should not be made legal ex post facto.

목차

Ⅰ. 문제제기

Ⅱ. 집행증서와 그 하자

Ⅲ. 일본에서의 집행증서의 하자와 관련된 논의

Ⅳ. 민사소송·집행과 신의칙

Ⅴ. 집행증서와 신의칙 관련 판례 검토

Ⅵ. 맺음말

참고문헌

키워드

집행증서 신의칙 공정증서 강제집행정지 금반언 Notarial Deed with Executory Force, vollstreckbare Urkunde Good Faith principle Notarial Deed Suspension of Compulsory Execution Estoppel