한정승인에 관한 집행제한 판결에 대한 검토 - 판결절차와 집행절차의 구별을 중심으로

• 발행기관: 한국민사소송법학회
• 저자명: 임상혁(Sahng Hyeog Ihm)
• 간행물 정보: 『민사소송』제29권 제1호, 425~454쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2025.02.28

국문 초록

The 2002 revision of the Civil Procedure Act represented a comprehensive restructuring of the legal framework, accompanied by a legislative decision to establish the Civil Execution Act as an independent statute. However, little rigorous debate took place regarding the formal separation of judgment procedures and execution procedures into distinct laws. Consequently, this significant legislative development has not led to substantial changes in academic interpretations or legal practice. Nevertheless, the formal differentiation between judgment procedures and execution procedures remains noteworthy, and I have sought to systematically organize the logical structure of this distinction. This issue arose because Korean courts, without due consideration, incorporated the limitation of execution into judicial practice concerning the Non-Recourse Liability Rule in inheritance. By embedding the phrase limiting execution liability within the dispositif (operative part) of the judgment, the courts contradicted the legislative formal intent, which emphasized the clear separation of each procedural stage. Furthermore, this practice has created conflicts with litigation theories on res judicata, preclusion, and fxecutory force. Additionally, it has given rise to new controversies regarding the Motion to Vacate Judgment and Third-Party Claim to Execution Property. To address these concerns, this study proposes a solution grounded in the enforcement law principle known as the Title for Enforcement. The dispositif of a judgment is inherently structured into distinct formal and logical divisions, comprising the substantive ruling, procedural rulings, and enforcement provisions. Res judicata applies exclusively to the substantive ruling and does not extend to the enforcement section including the provisional execution. The aforementioned controversy stems from the distortion of this logical structure, as execution limitations were inappropriately incorporated into the main ruling for the sake of procedural convenience, thereby disrupting the integrity of the dispositif. In response, this study reconstructs a new framework for the dispositif concerning the Non-Recourse Liability Rule, aimed at eliminating the controversy by restoring logical coherence while simultaneously reflecting the intent behind procedural convenience.

목차

Ⅰ. 들어가며 - 민사집행법 독립의 의의

Ⅱ. 판결절차와 집행절차의 준별

Ⅲ. 집행제한 판결의 형식과 기능

Ⅳ. 기판력과 한정승인의 항변

Ⅴ. 검토와 방안 제시

Ⅵ. 맺으며

키워드

판결절차와 집행절차의 준별 한정승인의 항변 집행제한 유보부 판결주문의 구조 기판력 차단효 집행력 청구이의의 소 제3자이의의 소 Formal Separation of Judgment Procedures and Execution Procedures Non-Recourse Liability Rule in Inheritance Limiting Execution Liability Dispositif[Operative Part] of Limiting Execution Judgement]) res judicata Preclusion Executory Force Motion to Vacate Judgment Third-Party Claim to Execution Property