Summary
This chapter separates the effect of revoking a preservative measure from the requirements for damages in tort, leaving room for residual losses.
6.1The Standard by Which the Path Opens
Even on the day the bound property is released, the lost transactions and costs may remain. When a provisional attachment is lifted, are the losses suffered in the meantime thereby recovered as well? This question does not ask whether the disadvantages already suffered are turned back by the release of restraint alone; it asks whether a path aimed at recovery of damage is opened, separately from the release. Where a loss on the merits has become final after conservatory execution, the precedents leave together the presumption of intent or negligence and the possibility of rebuttal. Here those two paths are separated, and the conditions under which each opens its door are examined.
The analysis begins by confirming the text of the first path by which the obligor seeks cancellation. Article 288 of the Civil Execution Act provides: "① The obligor may apply for cancellation of the provisional attachment even after the provisional attachment has been authorized if any of the following grounds exists. In the case of subparagraph 3, an interested party may also apply. 1. Where the grounds for the provisional attachment have ceased to exist or circumstances have otherwise changed 2. Where security designated by the court has been provided 3. Where no action on the merits has been filed for three years after the provisional attachment was executed." The applicant is the obligor, and in the case of subparagraph 3 alone an interested party stands alongside.
What this text establishes is the grounds for an application that brings the continued existence of the provisional attachment to an end; it is not the standard that fixes damages for past loss. Accordingly, if a ground for cancellation of the conservatory measure is recognized, the remedy of release of restraint is opened, and separately, if fault, damage, and causation regarding unjust execution are recognized, the remedy of damages is opened. The two stages differ in their requirements and effects. Cancellation of a provisional attachment cannot be converted into a determination of the occurrence of damage, causation, or amount. The condition under which that remedy opens is that either one of the two is satisfied.
If this extends to damages, temporary remedies may be chilled. If the risk of liability is raised, even legitimate applications for emergency protection are chilled. Moreover, proving damage and calculating its amount are complex and costly, and it is difficult to assess all of it at the application stage. Yet this concern cannot serve as a ground for changing the requirements of liability for damages. The presumption of intent or negligence and the possibility of rebuttal, reserved earlier, are left as they are, and the conclusion is maintained to the extent of not mixing the effects of cancellation with the requirements of damages.
Following Creditor A's provisional attachment, a loss on the merits by A became final, and Debtor B demands damages for business losses. A final loss on the merits is a records element that does not drop out of either the cancellation or the damages determination, but one cannot assert from that alone that both remedies open. The determination turns on what among the provisional attachment/provisional disposition decision, objection, change of circumstances, the outcome on the merits, rebuttal of fault, and damage materials has been secured. A side on which grounds for cancellation or damage and causation are not confirmed remains undetermined. Even after a loss on the merits, if circumstances that break the presumption of fault are recognized, the conclusion of automatic damages is abandoned.
In sum, the lifting of a provisional attachment is a release of restraint, and the losses suffered in the meantime are not recovered automatically by that release alone. Here, residual damage means the disadvantage remaining after the restraint has been released that remains subject to damages. Where a ground for cancellation of the conservatory measure is recognized, or where fault, damage, and causation regarding unjust execution are recognized and the corresponding remedy is opened, this remedy operates. This sentence, however, states the conditions for opening the door; it does not mean that the path to that door is always passable.
6.2The Conditions That Block Relief
It separates the effect of cancellation of a conservatory measure from the requirements of tort damages, and thereby leaves residual damage. The question now is under what conditions only damage after the release continues to remain.
The subjects established by this text are the obligor and the interested party under subparagraph 3; the act is an application for cancellation after authorization of the provisional attachment; and the condition is the existence of any of the grounds enumerated in each subparagraph.
The cancellation under this Article refers to the procedural route of the court that lifts the execution restraint. Opening that route releases the restraint, but it does not thereby recover the losses that have already been suffered. The reason these two must be distinguished is that Article 750 of the Civil Act separately requires that "A person who, through an unlawful act by intent or negligence, causes damage to another shall be liable for damages." Satisfaction of the requirements for cancellation and satisfaction of the requirements for damages each undergo separate determinations.
Even where a legitimate application for emergency protection is made, if the risk of liability is felt to be great, a creditor may hesitate, and that burden shakes confidence in the system of conservatory measures itself. If the existence of grounds for cancellation is mixed with the requirements handled in a damages lawsuit, the release of restraint may be delayed and the losses in the meantime may rather grow larger. The risk of chilling that Counterarguments point out is left in place, but that risk cannot be taken as a ground for raising the threshold of the cancellation procedure.
Whether a loss on the merits is itself a ground for cancellation or suspension cannot be determined from this screen alone. However, where an objection alone is raised without grounds for cancellation or suspension and execution continues, or where in damages the presumption is broken and there is no other basis for fault, if any one of the statutory requirements is not met, the remedial route is closed. The year, amount, commencement date, and judgment result that do not appear in the synthetic scene have not been set and therefore cannot be determined.
The conclusion this section permits is this. The lifting of a provisional attachment does not automatically recover the losses suffered in the meantime, and even after the release, residual damage becomes subject to damages only after passing separate requirements. Conversely, the conclusion this section does not permit is equally clear. The mere existence of grounds for cancellation does not immediately fix liability for damages, nor can it be said that the mere fact that damage remains establishes fault as well.
6.3The Boundary That Remains When There Is No Data
In the synthetic scene of this section, following Creditor A's provisional attachment, a loss on the merits by A became final, and Debtor B demands damages for business losses. The preceding section concluded that where an objection alone is raised without grounds for cancellation or suspension and execution continues, or where in damages the presumption is broken and no other basis for fault exists, this remedy is blocked. The question now presented, then, is the point at which to decide whether the losses suffered in the meantime are recovered merely by the restraint upon the bound property being lifted, or whether unrecovered disadvantages remain separately. To answer this question, one must first examine separately what each of the release of conservatory execution and the remedy for damage from unjust execution, as a procedure, must confirm.
The analysis begins by reading the provision that stipulates a path by which one can escape that restraint even after authorization of the provisional attachment. Article 288(1) of the Civil Execution Act provides: "① The obligor may apply for cancellation of the provisional attachment even after the provisional attachment has been authorized if any of the following grounds exists. In the case of subparagraph 3, an interested party may also apply." It then lists as grounds "1. Where the grounds for the provisional attachment have ceased to exist or circumstances have otherwise changed 2. Where security designated by the court has been provided 3. Where no action on the merits has been filed for three years after the provisional attachment was executed." In this text, the subject is the obligor, the act is an application for cancellation after authorization of the provisional attachment, and the condition is where one of the grounds in the respective subparagraphs has arisen. Examining other paragraphs of the provision or other grounds further at this point lies outside the scope of the present question.
What the above provision opens is the release of conservatory restraint, not a determination of the damage that has arisen in the meantime. In other words, the stage of asking whether grounds for cancellation of a provisional attachment exist and the stage of asking about fault and damage and causation regarding unjust execution differ in their object of confirmation and their basis of determination. Article 750 of the Civil Act provides: "A person who, through an unlawful act by intent or negligence, causes damage to another shall be liable for damages." This text requires together the grounds for fault of intent or negligence, an unlawful act, the occurrence of damage, and causation between them. Accordingly, where grounds for cancellation have not been confirmed, or where damage or causation has not been confirmed by the materials, the determination is left undetermined. Undetermined means a state in which judgment is reserved for lack of materials, and it is not the same as a case where, an objection having been raised without grounds for cancellation or suspension and execution having continued, or the presumption having been broken with no other basis for fault, the remedy is blocked.
The concern that if the route leading to damages is opened, even legitimate applications for emergency protection may be chilled points to a practical inconvenience. For a creditor who needs temporary conservatory measures, if the risk of later bearing liability for damages grows, the creditor may come to be unable to seek at the outset the remedy of binding property provisionally, and as a result a loss arises in which the genuine opportunity to recover the claim is forfeited. This chilling effect cannot be overlooked. The determination of cancellation is confined to addressing the grounds for the continued existence of conservatory restraint, while liability for damages requires separate confirmation of the fault, damage, and causation required by Article 750 of the Civil Act. Reducing the risk of chilling that the counterargument points out must be handled not by converting the requirements for cancellation into the requirements for damage, but by distinguishing the objects of determination of the two stages.
What can be confirmed in the synthetic scene is the fact that Creditor A had a provisional attachment, that thereafter A's loss on the merits became final, and that Debtor B demands damages for business losses. Here, the mere final loss on the merits does not immediately establish residual damage—that is, the disadvantage remaining after the restraint has been released that remains subject to damages. Whether damage occurred, whether that damage followed from the execution of the provisional attachment, what the amount is, and whether circumstances that break the presumption of fault exist cannot be confirmed from this scene alone. If, even after a loss on the merits, circumstances that break the presumption of fault are recognized, the conclusion of automatic damages is abandoned. Accordingly, this scene shows together the parts that remain undetermined and the framework of distinction already settled, and facts not determined cannot be filled in as though they were determined.
The conclusion this section permits is to view separately the cancellation of a provisional attachment and the remedy for damage from unjust execution, to leave that determination undetermined where grounds for cancellation or damage and causation are not confirmed, and to distinguish this from cases where the remedy is blocked. What this section does not permit is to assert, on the sole fact that a provisional attachment has been lifted, that the losses suffered in the meantime have been recovered as well, or to reduce an undetermined state to a failure of remedy. That materials are insufficient is merely a circumstance that defers judgment; it does not mean that the legal route is blocked.
6.4The Records Needed for Determination
To answer this question, one must first fix what records are necessary to determine the stage. Up to the previous stage, where a loss on the merits has become final, the precedents' presumption of intent or negligence and the possibility of rebuttal were left together.
For this question, Article 288(1) of the Civil Execution Act is placed first as the relevant text. That provision reads: "① The obligor may apply for cancellation of the provisional attachment even after the provisional attachment has been authorized if any of the following grounds exists. In the case of subparagraph 3, an interested party may also apply." The subject of this text is the obligor who may apply for cancellation of the provisional attachment, the act is that application for cancellation, and the condition is the existence of the grounds set out in each subparagraph. The discussion that follows concerns the records necessary to determine the existence of this condition.
For the same question, Article 750 of the Civil Act is placed alongside it. That provision provides: "A person who, through an unlawful act by intent or negligence, causes damage to another shall be liable for damages." The grounds for cancellation of a conservatory measure and the requirements for damages require different determinations. The presumption of intent or negligence and the possibility of rebuttal left by the previous stage also operate only within this distinction. Stage determination is made solely on the basis of materials recorded in the provisional attachment/provisional disposition decision, objection, change of circumstances, the outcome on the merits, rebuttal of fault, and damage materials. Anything outside the scope of these established records does not become material for judgment.
It is the concern that a creditor about to make a legitimate application for emergency protection may hesitate to apply because of the risk of liability. The loss targeted by this concern is the disadvantage arising from the conservatory remedy not opening in time, and the conclusion is maintained without erasing that point. If one moves past the stage by filling in, by presumption, items left unverified because the records contain no rebuttal of fault or damage materials, the determination of the grounds for cancellation and the determination of the requirements for damages become mixed.
In the synthetic scene, the facts relevant to this question are Creditor A's provisional attachment, the final determination of Debtor B's loss on the merits, and B's demand for damages for business losses. In light of this definition, the mere circumstance that the provisional attachment has been lifted cannot be taken to mean that the losses suffered in the meantime have been recovered. The scene, however, records no year or amount, and no specific items of damage. What items among the records necessary for determination are not confirmed in the scene likewise remains as it is.
The conclusion this section permits is narrow. It is that one cannot assert, on the sole fact that the provisional attachment has been lifted, that the losses suffered in the meantime have been recovered as well, and that the stage reaching damages is determined only upon the established records. If missing records are filled in by presumption, that determination does not open. Yet a state of insufficient records must not be read immediately as a failure of remedy. Leaving the unverified as unverified, and leaving only the narrow scope that can be determined, is the boundary of this section. Conversely, this section does not accept a reading that converts cancellation of a provisional attachment into a determination of the occurrence of damage, causation, and amount.
6.5Circumstances That Change the Decision
As the conclusion left by the preceding section, this determination rests on the provisional attachment/provisional disposition decision, objection, change of circumstances, the outcome on the merits, rebuttal of fault, and damage materials. Without that records, the conclusion remains undetermined. The question now is whether, when a provisional attachment is lifted, the losses suffered in the meantime are recovered as well.
To answer this question, the text of the two statutory provisions is first set out and examined. Article 288(1) of the Civil Execution Act provides: "The obligor may apply for cancellation of the provisional attachment even after the provisional attachment has been authorized if any of the following grounds exists," and lists as a ground "1. Where the grounds for the provisional attachment have ceased to exist or circumstances have otherwise changed." The subject established by this text is the obligor, the act is the application for cancellation, and the condition is the existence of the ground.
What deserves attention here is what this text does not carry. Cancellation of a provisional attachment is a determination that lifts that restraint, but it does not at the same time make a determination that fixes the existence, causation, and amount of the damage that has arisen in the meantime. The reason for separating the two is that, accordingly, how residual damage—that is, the disadvantage remaining after the restraint has been released that remains subject to damages—is handled diverges. Damages instead require a separate determination in accordance with the text of Article 750 of the Civil Act: "A person who, through an unlawful act by intent or negligence, causes damage to another shall be liable for damages."
The point that even legitimate applications for emergency protection are chilled when the risk of liability grows does not disappear. If the determination of cancellation stands in for the determination of damage, the separate stage of rebutting the presumption is erased, and the distinction that grounds for cancellation and grounds for fault are different circumstances collapses.
As a ground on which B may apply for cancellation even after A's provisional attachment has been authorized, Article 288(1), subparagraph 1 of the Civil Execution Act cites the cessation of the grounds for the provisional attachment or a change of circumstances otherwise. Recognition of this ground, however, does not immediately fix B's business losses. Conversely, the mere circumstance that A's loss on the merits has become final does not immediately fix fault either. Since the synthetic scene sets neither the amount of damage nor the scope of causation, those parts remain undetermined.
The conclusion this section permits is to separate the effect of cancellation of a conservatory measure from the requirements of tort damages, and thereby to leave residual damage. The conclusion this section does not permit is to move directly from a loss on the merits to automatic damages.
6.6The Strongest Counterargument and the Answer
Now, if matters proceed as far as damages, the objection is faced that temporary relief may be chilled. In the scene where, after Creditor A's provisional attachment, a loss in the principal action became final and Debtor B demands compensation for business losses, what is being established and what is not established is the question at issue.
It provides: "(1) Where any of the grounds falling under each of the following subparagraphs exists, the obligor may apply for revocation of the provisional attachment even after it has been authorized. In the case falling under subparagraph 3, an interested party may also apply." The persons designated by this provision are the obligor and certain interested parties; the act is an application for revocation after the authorization of the provisional attachment; and the conditions are the respective grounds of extinction of the grounds for the provisional attachment, change of circumstances, provision of security, and failure to file the principal action (including failure to file for three years).
What this provision asks is whether there are grounds for lifting the conservatory restraint, and that determination does not jointly require the occurrence of harm, causation between the attributable act and the harm, and the fixing of the amount of compensation. By contrast, Article 750 of the Civil Act separately provides a basis for damages, stating that "a person who has intentionally or negligently inflicted harm on another through an unlawful act is liable for damages." Accordingly, the effects of revocation of the conservatory measure and the requirements for tort damages must be kept apart so that residual harm is preserved, and the former determination cannot be replaced by the latter's establishment.
The strongest objection is directed at the point that raising the risk of compensation will chill even legitimate applications for urgent protection. From the creditor's position, the provisional measure was applied for urgently in the belief of prevailing in the principal action, and if damages follow afterward, one hesitates to make a good-faith application in the first place, with the disadvantage that the temporary relief painstakingly secured becomes difficult to function in substance. The concern over chilling must be addressed on the side that strictly requires the establishment and proof of liability, and it cannot be absorbed by making the revocation determination itself subject to heavier requirements.
In this scene, it is confirmed only that Creditor A had a provisional attachment, that thereafter Creditor A's loss in the principal action became final, and that Debtor B demands compensation for business losses. Here, revocation of the provisional attachment is a matter of the stage of lifting the conservatory restraint, while Debtor B's demand for compensation is a matter of the distinct stage of remedying harm from unjust execution. The Records fix only the categories of the provisional attachment and provisional disposition decisions, objections, change of circumstances, the outcome of the principal action, rebuttal evidence of fault, and harm materials; the actual collection of materials and the amount of harm have not been established. Whether there are circumstances that break the presumption of fault, and how causation with the harm stands, cannot be determined from this scene alone and thus remain undetermined.
The conclusion this section permits goes no further than to divide revocation of the provisional attachment and damages into distinct stages for determination, without drawing the requirements of the latter into the former. Conversely, the conclusion that the revocation determination must first establish occurrence of harm, causation, and amount, or the conclusion that a loss in the principal action at once establishes even the amount, are not permitted by this section, nor is it permitted to declare outright that insufficient materials immediately mean no remedy is available. Meanwhile, the residual harm defined here means the detriment remaining as a subject of compensation even after the restraint is lifted.
6.7The Link to the Application and the Dispositive Part
In this scene, B's demand is not an already fabricated claim; it is the starting point for discerning what is to be restored. The preceding section left that revocation of the provisional attachment cannot be replaced by the establishment of occurrence of harm, causation, and amount, and the present question is placed under that conclusion. In other words, it asks whether the effect of lifting the conservatory restraint and the requirements for restoring the detriment of the past period by compensation belong to the same stage.
In answering this question, Article 288 of the Civil Execution Act sets only the gateway to revocation of the conservatory measure. It provides: "(1) Where any of the grounds falling under each of the following subparagraphs exists, the obligor may apply for revocation of the provisional attachment even after it has been authorized. In the case falling under subparagraph 3, an interested party may also apply. 1. Where the grounds for the provisional attachment have been extinguished or circumstances have otherwise changed; 2. Where security designated by the court has been provided; 3. Where, after the provisional attachment has been executed, no action on the principal claim has been filed for three years" (Civil Execution Act Article 288). In this provision, the person is the obligor, the act is an application for revocation after the authorization of the provisional attachment, and the conditions are the grounds in each subparagraph. If the court accepts this application, the conservatory restraint is lifted, but its wording does not determine who shall compensate, and how, for the harm of the past period.
It must be read this way because the two determinations must be separated. Revocation of the conservatory measure addresses the effect of eliminating restraint going forward, while tort damages compensate for detriment already incurred by linking it to particular fault. Article 750 of the Civil Act provides that "a person who has intentionally or negligently inflicted harm on another through an unlawful act is liable for damages" (Civil Act Article 750). This wording opens a separate stage of determination requiring intent or negligence, an unlawful act, harm, and causation. Accordingly, the mere fact that revocation of the conservatory measure has been accepted does not complete the establishment of occurrence of harm, causation, and amount. If this distinction is missed, the conclusion that residual harm remains is confused with the effects of revocation.
If creditors hesitate to apply for fear that a legitimate application for urgent protection may raise the risk of compensation, even the interests the provisional measure system sought to protect urgently may be shaken; this is the core of the objection. The chilling risk the objection speaks of serves as a reason to maintain strict standards in the assessment of liability, but it does not become a ground for merging revocation and compensation into the same stage. Where a loss in the principal action has become final after conservatory execution, under the conclusion that places the case-law presumption of intent or negligence together with the possibility of rebuttal, if the presumption is broken and there is no other basis for fault, the conclusion of automatic compensation is abandoned. That is, the door to compensation stands open, but the fact that it is open and the fact of having passed through it are different matters.
What can be confirmed in this synthetic scene is A's provisional attachment, the finalization of A's loss in the principal action, and B's demand for compensation for business losses. The business losses B demands are a candidate for residual harm, but the amount and causation are not settled by the scene. The provisional attachment decision and the outcome of the principal action, the records of objections or change of circumstances, the materials concerning rebuttal evidence of fault, and the harm materials are used in the adjudication, but the scene has not established such records. The case where grounds for revocation are recognized, or fault, harm, and causation concerning unjust execution are recognized so that the corresponding remedy opens, is a different state from the case where only an objection is raised without grounds for revocation or stay so that execution continues, or where in the damages action the presumption is broken and there is no other basis for fault. Portions where grounds for revocation, harm, or causation are not confirmed remain undetermined.
The conclusion this section permits is narrow. Revocation of a provisional attachment accomplishes the effect of lifting the conservatory restraint, but it does not automatically restore lost transactions or expenses incurred in the meantime, and the residual harm remains as it is, awaiting determination of the requirements for compensation. The impermissible conclusion is equally clear. To substitute, on the sole fact that a revocation decision was made, for the establishment of occurrence of harm, causation, and amount, or to read it as having preliminarily established the existence of liability, goes beyond this distinction. Conversely, to discuss revocation alone and fail to examine the requirements for compensation is likewise an error that erases residual harm. The gap between these two determinations is the thread of recovering the harm.
6.8The Scope This Section Undertakes
The preceding section separated the effects of revocation of the conservatory measure from the requirements for tort damages and left residual harm standing. Its premise is the conclusion of the section that the lifting of the provisional attachment and the recovery of the harm incurred in the meantime are distinct questions. Yet once these two are kept apart, it must be clearly explained how this conclusion connects with the premise received from the preceding section. That is, on the premise that, where a loss in the principal action has become final after conservatory execution, the case-law presumption of intent or negligence is left together with the possibility of rebuttal, it must be demonstrated why residual harm remains not as an object of restoration but as a separate question of compensation. This question is what this section addresses.
On this problem, the relevant provision is examined first. Article 288 of the Civil Execution Act provides that "(1) Where any of the grounds falling under each of the following subparagraphs exists, the obligor may apply for revocation of the provisional attachment even after it has been authorized," and then lists "1. Where the grounds for the provisional attachment have been extinguished or circumstances have otherwise changed" as one of its grounds. The person designated by this wording is the obligor, the act is an application for revocation after the authorization of the provisional attachment, and the condition is the extinction of the grounds for the provisional attachment or a change of circumstances otherwise. Accordingly, this provision concerns the channel for applying for revocation; it does not contain any statement that revocation restores harm already incurred.
This basis and the conclusion of the preceding section meet here. That circumstances change after the authorization of the provisional attachment and an application for revocation opens up means that the continuation of the restraint is no longer justified. By contrast, the detriment remaining after the restraint is lifted that is a subject of compensation—that is, residual harm—remains separately. The reason these two must be separated is that the former determination addresses whether execution shall continue, while the latter determination addresses the recovery of detriment already suffered. The effects of revocation and the requirements for damages belong to different stages. The mere fact that revocation has been recognized does not jointly establish occurrence of harm, causation, and amount, and that establishment requires a separate determination.
The objection that, if matters proceed as far as damages, even legitimate applications for urgent protection may be chilled is raised most strongly. Conservatory measures are provisional means for urgent preservation of claims, so if the risk of compensation is perceived as excessive, creditors will hesitate to make legitimate applications, and as a result, relief may be delayed even in cases requiring protection. This inconvenience cannot be erased. Even so, once the objection is answered, the conclusion stands. Liability for damages is a matter recognized only when its requirements are satisfied on the premise that both the presumption and its rebuttal are preserved; it is not an incidental effect of revocation.
The conditions are contrasted through a synthetic scene. In this scene, the finalization of the loss in the principal action becomes a circumstance supporting that the provisional attachment was not a legitimate preservation of the claim, and the presumption of intent or negligence left by case law together with the possibility of its rebuttal operate in concert. Yet it cannot be said that, from this scene alone, the occurrence of harm, the causation between the provisional attachment and the harm, and the amount thereof are each established. Insofar as records concerning harm materials or rebuttal evidence of fault are not confirmed, the scope of residual harm remains undetermined. Unconfirmed items cannot be filled in by conjecture.
Accordingly, the conclusion permitted in this section is that the effects of revocation of the conservatory measure and the requirements for tort damages are separated so that residual harm is left standing, and what is impermissible is to merge the two stages in the manner of treating revocation as at once establishing occurrence of harm, causation, and amount. The premise of the preceding section connects thus: even where a loss in the principal action has become final after conservatory execution, if circumstances that break the presumption of fault are recognized, the conclusion of automatic compensation is abandoned. And this distinction leads on to the following provision: how do the wordings of Civil Execution Act Article 288 and Civil Act Article 750 support this conclusion?
6.9Application of the Text of the Provisions and the Holdings of Precedents
In this scene, release and restoration require distinct determinations. The first provision sets the grounds for revocation under Civil Execution Act Article 288. "(1) Where any of the grounds falling under each of the following subparagraphs exists, the obligor may apply for revocation of the provisional attachment even after it has been authorized. In the case falling under subparagraph 3, an interested party may also apply." It first limits the persons to the obligor, and, for certain grounds, to interested parties. It then lists the conditions of the act: "1. Where the grounds for the provisional attachment have been extinguished or circumstances have otherwise changed; 2. Where security designated by the court has been provided; 3. Where, after the provisional attachment has been executed, no action on the principal claim has been filed for three years" (Civil Execution Act Article 288).
That wording sets only the standing and grounds for an application for revocation; it does not contain a standard for calculating the harm remaining after revocation has been reached. Another provision, Article 750 of the Civil Act, takes fault and harm as its requirements, stating that "a person who has intentionally or negligently inflicted harm on another through an unlawful act is liable for damages" (Civil Act Article 750). Why these two provisions must be read apart is the core of this question. The lifting of the conservatory restraint is determined by the existence or non-existence of grounds for revocation, while the remedy for harm from unjust execution is determined by the existence or non-existence of fault, harm, and causation. Satisfaction of one provision does not automatically follow into satisfaction of the other.
The concern that, if matters proceed as far as damages, even legitimate applications for urgent protection may be chilled is aimed at this distinction. The worry is that if, after a creditor applies for urgent preservation of a claim, the creditor also bears liability for damages, even legitimate applications will be avoided and the effectiveness of the temporary relief system may be shaken. Yet however great that worry, revocation of a provisional attachment cannot be replaced by the establishment of occurrence of harm, causation, and amount. Revocation and compensation each leave different questions open, and on the compensation side, the case-law presumption of intent or negligence together with the possibility of its rebuttal operate in concert. If the presumption is broken and there is no other basis for fault, the conclusion of automatic compensation cannot be reached.
What is established in this scene are the parties A and B, the provisional attachment and the finalization of the loss in the principal action, and the demand for compensation for business losses. Contrasting these with the foregoing conditions, whether the grounds for revocation of the provisional attachment fall under the subparagraphs of paragraph (1) of Civil Execution Act Article 288, and whether the harm to be proved by B satisfies the requirements of Civil Act Article 750, remain matters to be determined on the records. The materials to be used in the determination are the provisional attachment and provisional disposition decisions, objections, change of circumstances, the outcome of the principal action, rebuttal evidence of fault, and harm materials. However, insofar as the existence or non-existence of grounds for revocation, the existence or non-existence of fault, harm and causation, and the amount remain unconfirmed, it cannot be declared from this scene alone that either remedy has opened. Unsettled values—that is, years, amounts, commencement dates, or the actual result of performance—may not be filled in.
The conclusion this section permits is that the relevant source provision is taken as the basis for determining the lifting of the conservatory restraint and the remedy for harm from unjust execution, but is applied only within the scope of each provision, and that the requirements of the two stages are separated so that residual harm is left standing. The impermissible conclusion is to treat the harm incurred in the meantime as restored on the sole fact that the provisional attachment was lifted, or, conversely, to treat compensation as automatically established by revocation alone.
6.10Fine Distinctions Within the Stage
보전 집행 뒤 본안 패소가 확정된 경우 판례의 고의·과실 추정과 반증 가능성을 함께 남긴다는 전제를 받아, 이번에는 보전 구속의 해제와 부당집행 손해의 구제 안에서 다시 나누어 판정할 부분이 무엇인지에 한정하여 살핀다. 그 안에서 이 절이 다루는 물음은 단계 안의 세부 구분을 어디까지 나누어 판단할 것인가이다. 여기서 단계 안의 세부 구분이란 해제와 손해 회복이라는 하나의 판단 안에서 근거와 조건을 따로 묻는 작업을 뜻한다. 채권자 A의 가압류 뒤 본안에서 패소가 확정되자 채무자 B가 영업상 손해의 배상을 요구하는 장면에서 이 구분이 실제로 무엇을 가르는지 확인할 차례이다.
민사집행법 제288조 제1항은 가압류가 인가된 뒤에도 채무자가 그 취소를 신청할 수 있는 사유를 세 가지로 적고 있으며, 그중 하나는 다음과 같다. "가압류가 집행된 뒤에 3년간 본안의 소를 제기하지 아니한 때"(민사집행법 제288조). 이 문언이 정하는 주체는 채무자이고, 행위는 취소의 신청이며, 시점은 가압류가 인가된 뒤이다. 사유가 적힌 각 호 가운데 위 인용은 제3호에 해당하며, 이때는 이해관계인도 신청할 수 있다고 함께 적고 있다. 문언이 가리키는 것은 취소를 신청할 수 있는 근거의 유무이지, 취소가 있은 뒤의 손해를 어떻게 산정할 것인지가 아니다.
그 문언의 범위와 이 절의 결론을 잇는다. 저자는 이 문언을 보전 취소의 근거를 정하는 조항으로 읽으며, 취소의 효과와 불법행위 손해배상의 요건은 서로 나누어 판단할 것으로 본다. 그 구별이 필요한 이유는 두 판단이 묻는 것이 다르기 때문이다. 하나는 구속을 풀 근거가 있는지이고, 다른 하나는 구속이 남긴 불이익을 누가 어떤 조건에서 물어야 하는지이다. 이 절에서는 단계 안의 세부 구분을 명시한 조건에 한정한다. 취소 사유가 인정되거나 부당집행에 관한 귀책과 손해와 인과관계가 인정되어 해당 구제가 열리는 경우가 있고, 근거 없이 이의만 제기해 집행이 계속되거나 손해배상에서 추정이 깨지고 다른 귀책 근거도 없는 경우에는 구제가 막히며, 취소 사유나 손해와 인과관계가 확인되지 않은 경우는 미확정으로 남는다.
손해배상까지 이어지면 임시 구제가 위축될 수 있다는 반론이 겨냥하는 손실은 정당한 긴급보호 신청의 위축이다. 신청인이 배상 위험을 앞에 두면 긴급한 보전조치를 망설여 본권을 지키는 시기를 잃고, 그 불이익은 정작 보호받아야 할 채권자가 짊어지게 된다. 이 반론의 불리한 부분을 지우지 않은 채로도 결론은 유지된다. 이 답은 배상책임을 가볍게 보는 뜻이 아니다. 취소를 신청할 수 있는 근거의 판단과, 손해가 발생했는지 인과관계가 있는지 액수는 얼마인지의 확정은 각각의 요건을 요구하므로, 앞의 판단을 뒤의 확정으로 대체할 수 없다는 것이다. 판례의 고의·과실 추정과 반증 가능성을 함께 남긴다는 전제에 따르면 귀책의 추정은 반증의 여지를 둔 채로 읽히고, 이는 추정만으로 액수까지 확정된다는 뜻이 아니므로 반론이 제기한 위축의 우려와 무관하게 구별은 유지된다.
합성 장면에서 이 물음과 관련된 사실만을 꺼내어 조건과 대조한다. 장면에 확정된 것은 채권자 A의 가압류 뒤 본안에서 패소가 확정되어 채무자 B는 영업상 손해의 배상을 요구한다는 사실이다. 이 대목을 부당집행에 관한 귀책과 손해와 인과관계가 인정되어 구제가 열리는 경우에 해당하는지를 판단할 자료로 삼는다. 그러나 장면은 채무자 B의 손해가 어떤 거래와 비용에서 얼마인지, 그 손해가 가압류와 인과관계를 갖는지 정하지 않았고, 귀책 추정을 깨는 사정이 있는지도 정하지 않았다. 따라서 취소 사유나 손해와 인과관계가 확인되지 않은 부분은 미확정으로 남는다. 만약 본안 패소 뒤라도 귀책 추정을 깨는 사정이 확인되면 자동 배상이라는 결론에 이르지 못한다는 점에서 이 판정의 경계가 드러난다.
이 절이 허용하는 결론과 허용하지 않는 결론의 경계를 정리한다. 허용되는 것은, 가압류가 풀려도 그동안의 손해가 자동으로 회복되는 것은 아니며 보전 취소의 근거와 잔존 손해의 배상 요건을 나누어 판단한다는 결론이다. 다시 말해 구속이 해소되었다는 사실만으로 손해 발생·인과관계·액수가 함께 확정되는 것은 아니다. 허용되지 않는 것은, 취소사유만으로 배상책임이 곧바로 성립한다는 결론이나, 역으로 본안에서 이겼다는 이유만으로 그동안의 손해가 모두 없어진다는 결론이다. 확인되지 않은 사정이 남은 자리는 미확정으로 두되, 이미 정해진 이 구별은 그대로 유지된다.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
여기서는 가압류로 묶인 재산의 구속이 풀리는 시점과 그 구속 기간에 생긴 불이익이 따로 평가되어야 하는지가 문제다. 앞 절에서 본안 패소 뒤의 귀책 추정과 반증 가능성을 함께 남겨 두었으니, 이제 그 추정이 어떤 구제를 여는지 그대로 들여다본다. 이 요구에 응답하기 위해서는 보전 구속을 해제하는 경로와 그 구속이 남긴 손해를 배상받는 경로가 서로 다른 조건 위에 서 있음을 먼저 확인해야 한다.
해당 경로를 열어 주는 문언으로 먼저 민사집행법 제288조를 살핀다. 그 제1항은 “①채무자는 다음 각호의 어느 하나에 해당하는 사유가 있는 경우에는 가압류가 인가된 뒤에도 그 취소를 신청할 수 있다. 제3호에 해당하는 경우에는 이해관계인도 신청할 수 있다.” 여기서 주체는 채무자이고, 그 행위는 가압류 인가 이후의 취소 신청이며, 제3호의 경우 이해관계인까지 신청할 수 있다. 조건은 각 호에 열린 사유에 해당하는 때로 정해져 있다. 이 문언은 가압류의 존속을 끝내는 절차적 신청권을 규율하는 것으로, 그 신청 자체가 곧 손해의 배상을 의미하는 것은 아니다.
한편 불법행위의 책임은 민법 제750조가 정한다. 그 문언은 “제750조(불법행위의 내용) 고의 또는 과실로 인한 위법행위로 타인에게 손해를 가한 자는 그 손해를 배상할 책임이 있다”고 선언한다. 이 두 근거는 왜 구별되어야 하는가. 취소 신청은 보전 조치가 법원의 판단에 따라 존속하지 않게 하려는 절차이고, 손해배상은 고의 또는 과실로 인한 위법행위로 가해진 손해를 회복시키는 책임이다. 전자를 닫았다고 후자가 자동으로 열리지 않고, 후자가 열려 있다고 전자의 조건이 자동으로 채워지는 것도 아니다. 그러므로 구속의 해제와 잔존 손해의 회복은 서로 다른 요건을 각각 충족해야 하는 별개의 단계로 나누어 살핀다.
그럼에도 손해배상 책임까지 광범위하게 인정되면 정당한 긴급보호 신청까지 위축될 수 있다는 우려가 가장 앞선다. 임시적인 보전 구제를 청구한 채권자가 나중의 배상 위험을 의식해 필요한 조치를 주저하게 된다면, 긴급하게 재산을 묶어야만 보호할 수 있었던 권리가 실제로는 지켜지지 않는 결과가 생긴다. 그 손실은 청구를 잃은 채권자가 혼자 짊어질 뿐 아니라 그 보전을 필요로 했던 권리의 실현에도 미친다. 이 절은 그 불리한 부분을 지우지 않는다. 취소의 길은 취소사유의 존부로 판단하고, 배상의 길은 귀책·손해·인과관계의 인정 여부로 판단하며, 둘의 기준을 섞지 않는다.
합성 장면의 사실을 이 조건에 대조해 본다. 이 요구에 대해서는 앞 절에서 남겨 둔 고의·과실 추정과 그 반증 가능성이 함께 작동하며, 이를 통해 귀책 사유가 인정되고 손해와 인과관계도 확인된다면 해당 구제가 열린다. 반면 취소나 정지의 근거 없이 이의만 제기해 가압류의 집행이 계속되거나, 손해배상 단계에서 귀책 추정이 깨지고 다른 귀책 근거도 없다면 구제는 막힌다. 취소사유가 인정되지 아니하는지, 손해나 인과관계가 아직 확인되지 않은지가 문제인 경우는 미확정으로 남는다. 영업상 손해의 액수나 그 기간처럼 합성 장면에 설정되지 않은 항목은 여기서 확정할 수 없다.
이 절에서 허용되는 결론은 이렇다. 보전 취소사유가 인정되거나 부당집행에 관한 귀책·손해·인과관계가 인정되어 해당 구제가 열리는 경우, 그리고 취소·정지 근거 없이 이의만 제기해 집행이 계속되거나 손해배상에서 추정이 깨지고 다른 귀책 근거도 없는 경우, 취소사유나 손해·인과관계가 확인되지 않은 경우를 셋으로 구별한다는 것이다. 이와 달리 가압류가 풀렸다는 사실 하나로 그동안의 손해까지 회복된 것으로 보아도 좋다는 결론, 또는 본안 패소만으로 모든 손해가 자동 배상된다는 결론은 이 절이 허용하지 않는다. 다음은 잔존 손해를 구속이 해소된 뒤에도 남은 배상 대상 불이익으로 두고 이 구별을 쓴다.
6.12이 권의 결론과 남는 물음
앞 절에서는 보전 취소사유가 인정되거나 부당집행에 관한 귀책·손해·인과관계가 인정되어 해당 구제가 열린 경우에는 작동하고, 취소·정지 근거 없이 이의만 제기해 집행이 계속되거나 손해배상에서 추정이 깨지고 다른 귀책 근거도 없는 경우에는 막히며, 취소사유나 손해·인과관계가 확인되지 않은 경우에는 미확정으로 남는다고 정리했다. 이 결론을 받아 채무자 B는 채권자 A의 가압류가 풀린 뒤에 본안에서의 패소 확정과 영업상 손해를 들어 배상을 요구한다.
가압류의 취소에 관하여 민사집행법 제288조 제1항은 채무자가 사유가 있을 때 가압류가 인가된 뒤에도 그 취소를 신청할 수 있다고 정하고, 사유로는 가압류이유가 소멸되거나 그 밖에 사정이 바뀐 때, 법원이 정한 담보를 제공한 때, 가압류가 집행된 뒤에 3년간 본안의 소를 제기하지 아니한 때를 열거한다(민사집행법 제288조). 여기서 신청의 주체는 원칙적으로 채무자이고, 셋째 사유에 해당하는 경우에는 이해관계인도 신청할 수 있다. 이 문언은 취소를 신청할 수 있는 사유와 절차를 정할 뿐이다.
이에 대하여 불법행위의 성립은 민법 제750조가 정하는 고의 또는 과실로 인한 위법행위로 타인에게 손해를 가한 경우를 요건으로 삼는다(민법 제750조). 취소가 인정되면 법적 통로가 열린 상태에서 보전 구속이 풀리는 것이지만, 그동안 발생한 손해의 배상은 별도로 고의 또는 과실로 인한 위법행위와 손해의 가해가 인정되어야 한다.
손해배상까지 이어지면 정당한 긴급보호 신청까지 위축될 수 있다는 반론이 있다. 보전 조치를 신청한 자가 본안에서 패소했다는 사정만으로 배상 위험을 부담하게 되면, 긴급한 필요 때문에 임시 구제를 구하는 자들이 신청을 주저하게 될 수 있다는 우려다. 취소와 배상은 각자의 요건으로 판단되는 문제이고, 반론이 지적한 위축의 불이익은 취소 요건과 배상 요건의 구별을 폐기하는 근거가 되지 못한다.
합성 장면에서 채무자 B는 영업상 손해의 배상을 요구하고 있으나, 이 장면만으로는 손해의 발생과 인과관계, 액수가 확정되어 있지 않다. 가압류·가처분 결정·이의·사정변경·본안 결과·귀책 반증·손해 자료가 확인되면 판단이 달라질 수 있다. 따라서 취소사유나 손해·인과관계가 확인되지 않은 경우에는 미확정으로 남는다.
이 절이 남기는 것은 가압류의 해제가 자동으로 손해의 회복을 가져오지 않는다는 구별과, 남은 배상 대상 불이익을 잔존 손해로 부른다는 정의다. 취소의 효과와 배상의 요건을 나누면, 법적 통로가 열린 경우에도 배상은 그 요건이 별도로 인정될 때 성립한다. 이 구별을 확인하고 나면 다음 물음은 '행정기관의 모든 문서가 처분인가?'이다.
Statutes referred to
Questions left open
- 담보가 실제 손해를 담지 못할 때 누구에게 부담이 남는가?
- 보전 필요가 소멸했음을 언제 알려야 하는가?
- 본안 결과가 바뀔 가능성과 취소의 긴급성을 어떻게 비교할 것인가?