Summary
This chapter distinguishes the principle of enforcement on the authenticated copy of a performance recommendation, the exceptions for conditions and succession, and the special rule on the time limitation of grounds for objection to the enforcement of a claim.
6.1The Standard by Which the Path Opens
A title for execution created through a simplified procedure must be read at once as both the simplification of execution and the protection of the debtor. In explaining the limited grounds for final appeal and reappeal in small claims cases while attending to the need for explanation, in a flow that does not create new grounds for challenge, the present discussion addresses execution and the question of objection after the stage of the decision recommending performance has been observed. Plaintiff A obtained a decision recommending performance in a small claims case but has not actually received payment, and Defendant B asks about the opportunity to object. In such a situation, the questions posed are whether a finalized decision recommending performance requires an execution clause as an ordinary judgment does, and what the standard is for opening the channel of this remedy. This question concerns the scope of the special rules on simplified titles, in other words, the special rules on the method of executing a decision recommending performance and on objection to the enforcement of a claim.
The provision in question is Article 5-8 of the Trial of Small Claims Act. Its paragraph (1) provides: "Compulsory execution under a decision recommending performance shall be carried out by means of the certified copy of the written decision recommending performance under Article 5-7 (2), without the need to be granted an execution clause" (Trial of Small Claims Act, Article 5-8). Here the subject is the plaintiff who applies for execution, the act is the compulsory execution under the decision recommending performance, and the means is the certified copy of the written decision recommending performance in place of the execution clause. The proviso that follows limits the manner to be read differently for execution to which a condition is attached and for execution carried out for or against a successor of a party. The wording up to subparagraph 3 of the same paragraph applies only within that scope.
What the text provides is twofold. One is the special rule on the method of execution, which does not require an execution clause as an ordinary judgment does for a finalized decision recommending performance; the other is the exception that where a condition or succession is involved, that special rule is not applied as it stands. These two are not the same determination. The former fixes the means of enforcing a finalized title, while the latter asks whether the conditions for using that means without impediment are already in place. That Article 5-8 (3) sets out that the assertion of an objection to the claim shall not be subject to the limitation under Article 44 (2) of the Civil Execution Act is a distinction in the same direction: the general rule is not copied verbatim as to the time limit on grounds for objection either (Trial of Small Claims Act, Article 5-8). Accordingly, the channel of execution by means of the certified copy is regarded as open.
Yet the counterargument that the special rule may weaken the predictability of the general rules of execution is not to be taken lightly. The core of that counterargument is that, if sufficient reasons and challenges are both guaranteed in every small case, the expedition of the system disappears, and that the debtor is inconvenienced by finding it difficult to gauge in advance the point at which the debt becomes fixed and the range within which objection is possible. Even so, the rules of the execution clause and the time rules of objection to the enforcement of a claim for ordinary judgments cannot be copied without exception to a decision recommending performance. If Article 5-8 sets out execution by means of the certified copy without an execution clause as the principle and lays down a separate rule as to the time limit for objection to the enforcement of a claim, the wording of that special provision must be respected as it stands. The uncertainty identified by the counterargument is to be reduced by reading the exception for conditions and succession narrowly, not by erasing the special rule itself.
Of the facts of the synthetic scene, only two bear on this question: that Plaintiff A obtained a decision recommending performance but has not yet actually received payment, and that Defendant B asks about the opportunity to object. From this scene alone it cannot be confirmed why the decision recommending performance became final, whether a condition was attached to the execution, whether a successor is involved, and what the circumstances of service and the filing of the objection were. Therefore only the contrast holds that where a condition or succession arises, the general special rule of executing by certified copy alone without an execution clause is not applied as it stands, and which of the two applies remains undetermined. The circumstance that payment has not been received speaks only to the need for execution; it does not answer whether an execution clause is required.
In the end, the channel opens where the matter falls within the scope of small claims and where the oral statement of reasons and the effort to make statutory entries, together with the finalization of the decision recommending performance and the special rule on execution, are observed. At that point, execution by means of the certified copy of the written decision recommending performance without an execution clause is the principle, and where procedures needed for the exception for conditions and succession remain, the requirements of that exception must first be satisfied. Where execution is sought on the basis of a decision recommending performance that has not yet acquired final effect, or where the classification of the case necessary to determine the grounds for finalization of the recommendation or the scope of its application has not been confirmed, the foregoing determination cannot be applied in haste.
6.2The Conditions That Block Relief
What is asked in this scene is whether a finalized decision recommending performance requires an execution clause as an ordinary judgment does, and what conditions block that path. A has not received payment and therefore seeks a means of execution, and B asks whether there is an opportunity to resist that execution. Leaving intact the limitation on grounds for challenge confirmed earlier, this part examines only the conditions for carrying out this stage.
Article 5-8 (1) of the Trial of Small Claims Act, which corresponds to this question, provides that compulsory execution under a decision recommending performance shall be carried out by means of the certified copy of the written decision recommending performance under Article 5-7 (2), without the need to be granted an execution clause. Here the subject of the act is the plaintiff who applies for execution, the means is the certified copy of the written decision recommending performance, and the principle concerns a finalized decision recommending performance. The same paragraph, however, lists three cases as exceptions: where a condition is attached to the execution of the decision recommending performance; where compulsory execution is carried out for a successor of a party; and where compulsory execution is carried out against a successor of a party.
This wording divides, within a single article, the mode of exemption from the execution clause and the exceptions where that exemption does not obtain. The premise of a finalized decision recommending performance and the state in which the exceptions for conditions and succession are not satisfied are different determinations and must not be conflated. If the former holds, the path of executing by certified copy alone is open; if the latter remains, that path is closed. Where execution is sought on the basis of a decision recommending performance that has not yet acquired final effect, or where procedures needed for the exception for conditions and succession remain, the channel of remedy is closed if any one of the statutory requirements is unmet.
The counterargument to be raised most strongly against this special rule is that the predictability of the general rules of execution is weakened. In ordinary judgments the execution clause and the time rules of objection to the enforcement of a claim are fixed in advance, so that creditor and debtor can easily gauge the outcome; if separate rules are laid down for each decision recommending performance, those rules must be read anew in every small case. Included in that inconvenience is also the point that if sufficient reasons and challenges are guaranteed in every case, the expedition of the system disappears. Even so, this counterargument remains. Article 5-8 (3) of the Trial of Small Claims Act separately provides that the assertion of an objection to the claim shall not be subject to the limitation under Article 44 (2) of the Civil Execution Act, making clear that the time rules of objection are not left to the general rules as they stand.
The facts confirmed in this scene are only that A obtained a decision recommending performance, that actual payment has not yet been made, and that B asks about the opportunity to object. Yet the grounds for finalization, whether a condition has been attached, and whether succession has occurred are not written in this scene. Accordingly, whether the exemption from the execution clause applies cannot be determined from this scene alone, and whether the statutory requirements are met remains undetermined. It is only that where a condition or succession arises, the general special rule of executing by certified copy alone without an execution clause is not applied as it stands.
The conclusion this part permits is narrow: for a finalized decision recommending performance, the principle of execution by certified copy must be distinguished from the exception for conditions and succession, and the time limit for objection to the enforcement of a claim must be read separately from the general rules. Beyond that, this part does not determine when actual payment is made, or on what grounds B's objection is accepted. The determination that the channel of remedy closes if any one of the statutory requirements is wanting also holds only within the fixed scope of the exception for conditions and succession.
6.3The Boundary That Remains When There Is No Data
In this scene, where the plaintiff seeks to continue the execution on the sole basis that the recommendation has become final, if the grounds on which the recommendation became final and the scope of its application are not confirmed on the records, the remaining question is what form of determination the court may render.
The statutory provision corresponding to this question is Article 5-8 of the Trial of Small Claims Act. Its paragraph (1) provides, "Compulsory execution under a decision recommending performance shall be carried out by means of the certified copy of the written decision recommending performance under Article 5-7 (2), without the need to be granted an execution clause," and then sets as exceptions the cases where it is otherwise: "1. Where a condition is attached to the execution of the decision recommending performance; 2. Where compulsory execution is carried out for a successor of a party; 3. Where compulsory execution is carried out against a successor of a party" (Trial of Small Claims Act, Article 5-8).
The wording above sets out together the rule fixing the method of execution and the list of its exceptions, and whether this special rule opens or closes depends on the facts concerning the certified copy and the condition and succession. Yet if, in the plaintiff's case, those facts themselves are not confirmed, the court can neither affirm nor deny the establishment of an exception. A matter whose adjudicative materials are not specified is different both from a case in which it is confirmed that there is no exception and from a case in which it is confirmed that an exception is established; the author leaves this range as undetermined, distinguishing it also from legal impossibility.
The special rule may weaken the predictability of the general rules of execution. The concern that if sufficient reasons and challenges are guaranteed in every small case the expedition of the system disappears lies in the fact that this simplification may narrow the debtor's opportunities for defense. Article 5-8 makes execution by certified copy the principle and takes only the cases of conditions and succession as exceptions; if the time rules were unified on the standard of ordinary judgments, the distinction drawn by the article would disappear (Trial of Small Claims Act, Article 5-8).
The fact alone that the plaintiff has not received payment does not specify the grounds for finalization of the recommendation or the scope of its application. It is only that whether this examination applies to the present scene cannot be determined.
What this part permits is at most the determination that distinguishes the principle of execution by certified copy and its exception, and the special rule on the time limit for objection to the enforcement of a claim, and that leaves matters undetermined where the classification of the case is not confirmed. To declare an exception or impossibility straightaway on the ground that there is no material, or to revert a finalized decision recommending performance to the system of execution clauses as with ordinary judgments, lies outside this range.
6.4The Records Needed for Determination
The reason the same scene asks together about the room for the debtor to raise an objection and the manner in which the creditor proceeds to execution is that the records at this stage fix the position of each of the two. Hence placed side by side are the question whether a finalized decision recommending performance requires an execution clause as an ordinary judgment does, and the question which records are needed for that determination.
The special rules on simplified titles mean the special rules on the method of executing a decision recommending performance and on objection to the enforcement of a claim. Among these special rules, the wording concerning the method of execution is laid down in Article 5-8 of the Trial of Small Claims Act. Its paragraph (1) provides: "Compulsory execution under a decision recommending performance shall be carried out by means of the certified copy of the written decision recommending performance under Article 5-7 (2), without the need to be granted an execution clause." Here the subject is the creditor who seeks compulsory execution under the decision recommending performance, and the act is carrying out compulsory execution by means of the certified copy of the written decision recommending performance in place of receiving an execution clause. The condition is that the execution is under a finalized decision recommending performance, and the certified copy denotes the document governed by paragraph (2) of the same Article.
The same provision places three cases as exceptions immediately after this wording. The reason these exceptions must be read alongside the principle of execution by certified copy is that the simplification promised by the foregoing wording stops at the exceptions. The point at which principle and exception part is not a single phrase, the presence or absence of an execution clause, but two conditions: whether a condition has been imposed and whether there has been a succession of a party. To examine whether records of these two conditions remain is itself the determination, and only fixed records are used here. Only the materials recorded in the amount at the time of filing, the performance, the written judgment, the explanation given at pronouncement, service of the recommendation, the objection, the condition, the succession, and the certified copy are the material for that determination; a missing record is not filled in by conjecture.
The very act of naming this distinction a special rule may weaken the predictability of the general rules of execution. It is also pointed out that if sufficient reasons and challenges are guaranteed in every small case, the expedition of the system disappears. This loss is real. The debtor can no longer know in advance when and what defense to prepare, and the creditor can no longer know in advance by which document to proceed to execution. If it is copied, the fixed distinctions of the exception for conditions and succession and the special rule on the time limit for objection to the enforcement of a claim are erased. Even if the value of predictability is said to be preserved, an extension beyond the foregoing conditions is not permitted by the wording of this special rule.
In the scene above, the facts relevant to this question are no more than that a decision recommending performance was obtained, that there was no actual payment, and that the defendant asks about the opportunity to object. With these three facts alone, neither whether a condition was imposed nor whether there has been a succession of a party is confirmed. The classification of the case necessary to determine the grounds for finalization of the recommendation or the scope of its application is also still open. Accordingly, from this scene alone it cannot be determined which stage is at issue, and the unverified items remain undetermined. The fact that material is insufficient does not itself mean that no remedy is available. It is only that where the case falls within "where a condition or succession arises, the general special rule of executing by certified copy alone without an execution clause is not applied as it stands," the list of exceptions seen above applies as it stands.
Accordingly, one cannot say that an execution clause exactly like that for an ordinary judgment is required for a finalized decision recommending performance; nor, on the other hand, can the execution stage be fixed by the certified copy alone without records. The determination diverges according to which of the amount at the time of filing, the performance, the written judgment, the explanation given at pronouncement, service of the recommendation, the objection, the condition, the succession, and the certified copy is filled in. Conversely, filling a missing item by assumption or applying the general special rule while skipping the exception for conditions and succession is not a conclusion. The determination stands only within the bounds of the records.
6.5Circumstances That Change the Decision
At the preceding stage the granting of an execution clause for a decision recommending performance was at issue, but Plaintiff A obtained a decision recommending performance in a small claims case without actually receiving payment, and Defendant B asks about the opportunity to object. Does a finalized decision recommending performance require an execution clause as an ordinary judgment does? And what change reverses the determination of the existing stage?
The provision that answers this question is Article 5-8 of the Trial of Small Claims Act. The main text of its paragraph (1) declares that compulsory execution under a decision recommending performance shall be carried out by means of the certified copy of the written decision recommending performance under Article 5-7 (2), without the need to be granted an execution clause. By its terms, the subject of the compulsory execution is the party applying for execution, the act is the compulsory execution by means of the certified copy of the written decision recommending performance under Article 5-7 (2), and the condition is that the decision recommending performance has already been rendered (Trial of Small Claims Act, Article 5-8).
Taking this main text as the basis yields this part's conclusion that, in principle, no execution clause is required for the execution of a finalized decision recommending performance. The proviso of the same paragraph, however, sets out three exceptions: where a condition is attached to the execution of the decision recommending performance, where compulsory execution is carried out for a successor of a party, and where compulsory execution is carried out against a successor of a party. This distinction becomes the standard of determination at this stage that divides the general special rule of executing by certified copy alone from the grounds for change to which that special rule does not apply (Trial of Small Claims Act, Article 5-8).
The counterargument that the special rule may weaken the predictability of the general rules of execution fears that if sufficient reasons and challenges are guaranteed in every small case, the expedition of the system disappears. This concern points to the loss that the debtor can no longer know the basis of the execution in advance, and to the fact that the cost of guaranteeing opportunities for defense in each case may grow together. Without erasing the adverse aspect of the counterargument, it also preserves the intention of reading simplification and defense together by laying down special rules for a decision recommending performance (Trial of Small Claims Act, Article 5-8).
In this scene, whether the plaintiff, when applying for execution, already holds the certified copy of the finalized written decision recommending performance, and whether a condition was attached to the execution, must be confirmed on the records. Since the scene alone does not reveal whether a condition or succession has arisen, whether an execution clause is required for a finalized decision recommending performance remains undetermined.
The conclusion permitted in this part is limited to the following scope: for the execution of a finalized decision recommending performance, an execution clause is in principle not required; however, where a condition has been attached or where the case involves a successor of a party, execution cannot be carried out by the certified copy alone. Conversely, the conclusion that the execution clause or the time rules of objection to the enforcement of a claim must be applied without exception exactly as for ordinary judgments is not permitted by this part.
6.6The Strongest Counterargument and the Answer
Although the question of whether a decision recommending performance that has become final requires an execution clause like that for an ordinary judgment has already been answered in the previous step, this item does not repeat that conclusion and instead addresses a different criticism. That is the observation that the special rules may weaken the predictability of the general enforcement rules. The execution clause and the time for an objection to the enforcement of a claim are two devices that tell in advance what the creditor must prepare and by when the debtor must defend in compulsory execution on an ordinary judgment. Yet if the simplified enforcement title of a decision recommending performance opens a separate path, the rules applicable to the same case diverge. This question decides whether one can say that the loss of predictability is greater than the gain from procedural simplification.
Article 5-8 of the Trial of Small Claims Act prescribes first the method of compulsory execution under a decision recommending performance. Paragraph (1) declares that it is carried out by means of a certified copy of the written decision recommending performance under Article 5-7 (2), without the need to be granted an execution title. The subject referred to here is the creditor seeking to execute the decision recommending performance; the act is the compulsory execution by means of that certified copy; and the condition lies within the premise of a decision recommending performance that has become final. The provision, however, closes off this simplified path in three exceptions: where conditions have been attached to the execution, where compulsory execution is carried out for a successor to a party, and where compulsory execution is carried out against a successor to a party. Meanwhile, paragraph (3) provides that an assertion of an objection with respect to the claim shall not be subject to the limitation under Article 44 (2) of the Civil Execution Act. Thus the special rule on the method of execution and the special rule on the time limitation for grounds of objection stand side by side, each subject to a condition expressed in different words.
If these two special rules are bundled into one, the special rule on simplified enforcement titles would amount to toppling every procedural rule. By contrast, if the distinction the statutory text draws separately is respected, reading how far the reach of the special rules extends itself becomes part of predictability. The point that no execution title is required even for a decision recommending performance that has become final holds only within the established path of execution by certified copy prescribed in Article 5-8 (1). When an exception such as a condition or a succession arises, that path closes, and the time limitation for an objection to the enforcement of a claim is dealt with separately in paragraph (3). The reason the author takes the view that the execution-title and objection-time rules of an ordinary judgment cannot be copied without exception onto a decision recommending performance is that the statutory text has already chosen distinction in place of copying. Transplanting the general rules as they are would instead erase the difference the provision leaves open and further blur predictability.
Yet the criticism that this answer is too light remains to the end. The loss is that if sufficient grounds and a means of contesting are guaranteed in every small case, the expedition of the system disappears. The reason small-claims procedure is made simple is that the parties expect to bring matters to an end at little cost and in a short time. But if every debtor is required to prepare grounds and manage deadlines on a level with an ordinary judgment, a creditor who has received a recommendation yet has not recovered the money must wait that much longer, and small-value disputes become something one would not have chosen in the first place. The price at which predictability is imported is the loss of expedition that must be paid as the cost of subdividing the procedure. The earlier answer is maintained while the adverse portion of this criticism is not erased. The debtor's avenues of defense remain by reading the scope of the exceptions the law has fixed in advance, and demanding the general rules in addition is nothing more than borrowing the rules of other cases. The scope in which predictability may be weakened is absorbed to a considerable extent by the very wording that fixes the list of exceptions and their conditions of application.
In the synthetic scene, not many facts bear on this question. Plaintiff A has received a decision recommending performance but has not actually been paid, and Defendant B is asking about the opportunity to object. From these records alone, one cannot determine whether conditions were attached to the recommendation, whether there was a succession of a party, or whether the plaintiff applied for multiple certified copies. Even if it has been settled earlier that a decision recommending performance that has become final does not require an execution title like an ordinary judgment, unless the grounds for that finality and the case classification needed for its scope of application are confirmed, it remains undetermined even whether the special rule on the method of execution applies as it stands to this scene. The contrastive condition that, where a condition or a succession arises, the general special rule of executing by certified copy alone without an execution title is not applied as it stands likewise cannot be asserted as fact here, since the condition has not been confirmed; judgment is only reserved. The opportunity to object remaining to Defendant B is a matter to be examined in the direction of reading the special rule on the time rule prescribed in paragraph (3), and does not create new grounds for objection.
Accordingly, the conclusion this item permits is that the execution-title and objection-time rules of an ordinary judgment cannot be copied without exception onto a decision recommending performance, and that this distinction derives from the exceptions to execution by certified copy prescribed in Article 5-8 and the special rule on the time limitation for an objection to the enforcement of a claim. What is not permitted is either to invoke the special rules to render the general enforcement rules as a whole void, or conversely to add exceptions not found in the statutory text on the strength of concerns about predictability. What is settled here and now is a conditional distinction, and it does not determine the facts, service, and results of performance in an actual case.
6.7The Link to the Application and the Dispositive Part
In this scene, A asks how to proceed to compulsory execution on the basis of the decision recommending performance, and B asks whether one must go through the procedure for granting an execution clause familiar from the case of a final and conclusive judgment. Although in the previous section I received the explanation that the execution-clause and objection-time rules of an ordinary judgment cannot be copied without exception onto a decision recommending performance, without re-unfolding the earlier argument, I continue by unfolding only the standard for answering the present question. In this section, the special rule on simplified enforcement titles is defined as referring to the special provisions on the method of execution of a decision recommending performance and on an objection to the enforcement of a claim.
Article 5-8 of the Trial of Small Claims Act provides that 'compulsory execution under a decision recommending performance shall be carried out by means of a certified copy of the written decision recommending performance under Article 5-7 (2), without the need to be granted an execution title,' while attaching a proviso: 'except in any of the following cases' (Article 5-8 of the Trial of Small Claims Act). Here the subject is the plaintiff who applies for compulsory execution on the basis of the decision recommending performance, and the act is the execution carried out by submitting that written decision, a certified copy, without an execution title. However, since the enforcement title that this wording contemplates for execution is a decision recommending performance that has become final, a case in which one applies for execution immediately with a recommendation that does not yet have final effect does not fall within the scope the wording covers.
The exception that follows this main clause connects closely with the principle of the method of execution set out before it. Where the principle opens the way to a method of executing by certified copy alone, omitting the granting of an execution title, the proviso to Article 5-8 (1) separately provides for 'where conditions have been attached to the execution of the decision recommending performance,' 'where compulsory execution is carried out for a successor to a party,' and 'where compulsory execution is carried out against a successor to a party,' and the principle does not apply in these cases (Article 5-8 of the Trial of Small Claims Act). Accordingly, the backbone of this distinction is that a decision recommending performance to which conditions are attached, or a compulsory execution involving a successor, cannot be handled by the method of certified copy alone opened up earlier; and the author makes clear that, in addition to this, the item providing that an assertion of an objection with respect to the claim 'shall not be subject to the limitation under Article 44 (2) of the Civil Execution Act' stands separately as a special rule concerning the time limitation for grounds of objection (Article 5-8 of the Trial of Small Claims Act).
Yet the concern that the special rules may weaken the predictability of the general enforcement rules does not disappear. If, as with an ordinary judgment, a uniform procedure through an execution title were left in place for a decision recommending performance, everyone could anticipate and follow the same procedure; but if separate rules are laid down for a decision recommending performance as to the method of execution and objections to claims, what the creditor and the debtor must prepare and at what point may differ. Even so, the answer the author has fixed is that the execution-title and objection-time rules of an ordinary judgment cannot be copied without exception onto a decision recommending performance; and following the reason why the statutory text itself distinguishes principle from exception and even places a separate item on objections to claims, the special rules cannot be digested in the direction of guaranteeing sufficient grounds and a means of contesting in every small case to the level of an ordinary judgment, thereby erasing expedition. While not asserting that this concern has vanished, it is closer to the correct answer to this question to read together, as they stand, the differences left by the exceptions for conditions and succession and the special rule on objections to claims.
In a scene where plaintiff A has already obtained a decision recommending performance but actual payment has not yet been made, the assessment of the method of execution and the opportunity to object diverges according to the grounds for finality, the conditions attached to the recommendation, and whether there has been a succession. If the decision recommending performance has become final, no conditions are attached, and no successor to a party is involved, then under the main clause of Article 5-8 (1) a path opens to proceed to compulsory execution without an execution title, by means of the certified copy of the written decision recommending performance, and the value at the time of filing, performance, the written judgment, the explanation of pronouncement, service of the recommendation, the objection, the conditions, the succession, and the certified copy are confirmed together as related records (Article 5-8 of the Trial of Small Claims Act). However, where the grounds for finality have not been confirmed, or conditions have been attached, or a successor is involved, the general special rule opened up by Article 5-8 (1) cannot be applied as it stands, and the same limitation blocks a case in which one seeks to proceed to execution with a decision recommending performance that does not yet have final effect. The portions where the grounds for the recommendation's finality or the case classification needed for its scope of application have not been confirmed remain undetermined, and one does not assert that relief has been blocked merely because materials to check what procedures remain are lacking.
The conclusion this section permits is this: the execution of a decision recommending performance that has become final is carried out, unlike an ordinary judgment, without an execution title, by means of a certified copy of the written decision recommending performance, establishing that principle; yet execution to which conditions are attached and compulsory execution involving a successor are excluded from that special rule, and the time limitation on the assertion of an objection to the enforcement of a claim is read as a distinction not subject to the limitation of Article 44 (2) of the Civil Execution Act (Article 5-8 of the Trial of Small Claims Act). Hence, if this principle is put into everyday language, what is general is that one need not separately obtain an execution title; it does not mean that the exceptions for conditions and succession have disappeared, nor that the debtor's opportunity to object has been reduced.
6.8The Scope This Section Undertakes
In this scene, the plaintiff seeks to proceed to recovery on an enforcement title that has already become final, and the defendant asks whether a chance to protect himself remains. Accordingly, this question is addressed to whether an execution title like that of an ordinary judgment is separately required even for a decision recommending performance that has become final, and how a place remains for the debtor to assert an objection when execution is begun on that enforcement title. This question must be read by placing the method of execution and the opportunity for defense side by side.
The wording corresponding to this question is Article 5-8 of the Trial of Small Claims Act. Here the subject is the plaintiff who seeks to apply for compulsory execution under a decision recommending performance, and the act is presenting a certified copy of the written decision recommending performance as the basis for execution, without separately obtaining an execution title. The condition is that the enforcement title is compulsory execution under a decision recommending performance, and the certified copy refers to the certified copy of the written decision recommending performance prescribed in Article 5-7 (2).
While this wording prescribes a method that does not require an execution title to be attached, the proviso of the same paragraph makes exceptions for execution to which conditions are attached and execution involving a succession of parties (Article 5-8 of the Trial of Small Claims Act). Where a case falls within an exception, the method of executing by certified copy alone is not used as it stands, so the principle of the preceding sentence and the exception of the proviso must be judged separately. Article 5-8 (3) of the same Act provides that 'an assertion of an objection with respect to the claim shall not be subject to the limitation under Article 44 (2) of the Civil Execution Act' (Article 5-8 of the Trial of Small Claims Act), making clear that the rule lightening the basis of execution and the rule imposing a time limitation on grounds of objection are different matters. Thus the special rule on simplified enforcement titles in this section refers to the special provisions on the method of execution of a decision recommending performance and on objections to claims, and does not turn a decision recommending performance that has become final back into an execution requiring an execution title like that of an ordinary judgment.
The strongest counterargument is aimed at the point that such special rules may weaken the predictability of the general enforcement rules. If when an execution title is needed, and by when grounds for objection must be raised, were the same as for an ordinary judgment, both debtor and creditor could easily calculate their actions in advance. If this is lost, the uncertainty remaining in each small case may slow both the debtor's defense and the creditor's recovery. Another inconvenience is that if sufficient grounds and a means of contesting are guaranteed in every small case, the expedition of the system disappears. Even so, the execution-title and objection-time rules of an ordinary judgment cannot be copied without exception onto a decision recommending performance, and leaving the burden of this counterargument as it is, one reads the exceptions for conditions and succession and the special rule on the time limitation for objections separately.
In the synthetic scene, only the facts that plaintiff A received a decision recommending performance yet has not been actually paid, and that Defendant B is asking about the opportunity to object, are confirmed. Since the grounds for finality of the recommendation or the case classification have not been confirmed from this scene alone, the point at which execution may be commenced and the grounds for objection the defendant would actually assert remain undetermined. However, since there is no fact that a condition or a succession arose in the scene, there is as yet no ground to contrast the method of executing by certified copy alone with the exceptions. Accordingly, whether plaintiff A, who has not actually been paid, will obtain recovery, or whether Defendant B's objection will be accepted, cannot be determined from this scene.
The conclusion this section permits remains within the narrow distinction that compulsory execution under a decision recommending performance that has become final does not require separately obtaining an execution title like that of an ordinary judgment; the distinction that execution by certified copy is subject to the exceptions for conditions and succession; and the distinction of the special rule that the time limitation for an objection to the enforcement of a claim is not barred in the same way as the general rules. It does not mean that this special rule forthwith determines the grounds for finality of the decision recommending performance, the case classification, or the results of actual payment or recovery.
6.9Application of the Text of the Provisions and the Holdings of Precedents
In this scene, it is at once at issue whether plaintiff A may proceed with compulsory execution on the basis of the certified copy, and until when defendant B may assert an objection to the claim. This section considers only the text governing the question whether a finalized decision recommending performance requires an enforcement formula, as an ordinary judgment does, and confirms the limits on the manner of the act and the point in time that the text indicates. The term "special rules on the simplified title" means the special rules concerning the manner of execution under a decision recommending performance and objection to the enforcement of a claim.
Article 5-8 of the Trial of Small Claims Act prescribes, in its very words, the manner of compulsory execution pursuant to a decision recommending performance. "Article 5-8 (Special Provisions on Compulsory Execution Pursuant to a Decision Recommending Performance) (1) Compulsory execution pursuant to a decision recommending performance shall be effected on the basis of a certified copy of the written decision recommending performance under Article 5-7 (2), without the need to obtain an enforcement formula." The actor indicated by this text is the plaintiff who undertakes the execution of the decision recommending performance; the act is compulsory execution on the basis of the certified copy of that written decision recommending performance; and the condition is that the case falls within that in which no enforcement formula need be obtained. The proviso to paragraph (1) of the same Article excepts execution to which conditions are attached and execution concerning a successor to a party; paragraph (2) prescribes how a court clerk, etc. is to handle a case where multiple certified copies have been applied for or a renewed application is made without returning previously issued certified copies; and paragraph (3) addresses the assertion of an objection to the enforcement of a claim that is not subject to the restriction under Article 44 (2) of the Civil Execution Act. These texts alone are the basis of decision for this section.
On the basis of these texts, the question whether a finalized decision recommending performance requires an enforcement formula, as an ordinary judgment does, is decided within the scope of the source text in question. The main text of Article 5-8 (1) excludes the need for the granting of an enforcement formula and takes execution on the basis of the certified copy as the principle; accordingly, confined to the words of this paragraph, the execution of a finalized decision recommending performance does not require an enforcement formula such as an ordinary judgment requires. At the same time, the text also provides that where one of the three exceptions in the proviso applies, the matter is treated differently. Meanwhile, paragraph (3) separately addresses the time limit on the assertion of an objection to the enforcement of a claim, so the manner of execution and the opportunity to assert the objection cannot be bundled together and fixed as one thing. Only by distinguishing the two stages can one read, according to their respective texts, whether execution under a decision recommending performance is possible on the certified copy alone and until when the debtor may assert an objection to the claim.
In the case of an ordinary judgment, the enforcement formula and the prescribed time rules for objection to the enforcement of a claim are fixed in advance, so that creditor and debtor alike can anticipate together the manner of execution and the point of defense. By contrast, a decision recommending performance permits execution on the certified copy alone, simplifying the preparation of the enforcement wording, and, as to the assertion of an objection to the enforcement of a claim, frees it from the restriction under Article 44 (2) of the Civil Execution Act, thereby broadening the scope of the debtor's defense. The counterargument that such special rules unsettle the uniform expectations of the general rules points to an inconvenience that cannot be called small. This answer is maintained only so far as the textual distinction is left intact, namely that Article 5-8 places execution on the certified copy and the exclusion of restrictions on objection to the enforcement of a claim in separate paragraphs.
In the synthetic scene, it is not settled whether the decision recommending performance received by plaintiff A is in fact one carrying attached conditions, or whether succession occurred between the parties. Since no fact falling within the three exceptions in the proviso to Article 5-8 (1) has been confirmed, those exceptions cannot be applied on the basis of this scene alone. Whether plaintiff A applied for multiple certified copies, or applied again without returning a certified copy previously issued, likewise does not appear in the scene, so the grounds for entry under paragraph (2) cannot be fixed. The fact that defendant B wishes to assert an objection to the claim is visible, but what that assertion will contain and when it will be made remain undetermined. Accordingly, whether the matter falls within the small-claims range, and whether the oral reasons, the efforts at statutory recordation, and the finalization of the decision recommending performance together with the special execution rules were observed at that stage, cannot be determined from this scene alone. Yet the boundary remains that where one seeks to execute on a decision recommending performance that does not yet possess the effect of finality, or where procedures necessary for the conditions and succession exceptions remain outstanding, the principle of execution on the certified copy cannot be applied as it stands.
The conclusion this section permits is that, within the words of the source text in question, the principle of execution on the certified copy without an enforcement formula as prescribed by the main text of Article 5-8 (1), the exceptions in the proviso, and the special rules on the assertion of an objection to the enforcement of a claim prescribed by paragraph (3) are each distinguished and read according to their respective texts. A conclusion that draws into this decision, as its basis, a manner of writing the reasons for judgment or the execution rules of other provisions that the text does not indicate is not permitted. The confirmation that the legal channel of execution on the basis of the certified copy is open, according to the text, and the finding that plaintiff A in fact recovered payment are separate matters, so the latter cannot be restated as the former. Likewise, years, amounts, accrual dates, and judgment outcomes that do not appear in the synthetic scene do not enter this determination. Only where procedures necessary for the conditions or succession exceptions remain, and where the scope of application of the grounds for objection to the enforcement of a claim is unconfirmed, do matters remain undetermined.
6.10Fine Distinctions Within the Stage
In this scene, the question whether a finalized decision recommending performance requires an enforcement formula, as an ordinary judgment does, is properly posed only once the special rules on the simplified title are set out and the manner of execution and the time rules for objection to the enforcement of a claim are examined separately. Here the special rules on the simplified title mean the special rules concerning the manner of execution under a decision recommending performance and objection to the enforcement of a claim, and the present question asks which parts within those special rules must again be divided and adjudicated.
Article 5-8 of the Trial of Small Claims Act draws several distinctions in its text with respect to compulsory execution pursuant to a decision recommending performance. First, paragraph (1) of the same Article provides: "Compulsory execution pursuant to a decision recommending performance shall be effected on the basis of a certified copy of the written decision recommending performance under Article 5-7 (2), without the need to obtain an enforcement formula." The actor indicated by this text is the creditor holding the certified copy of the written decision recommending performance; the act is compulsory execution on the basis of that certified copy; and the condition is that no enforcement formula has been obtained in advance. The proviso to the same paragraph enumerates the cases falling outside that principle: execution to which conditions are attached and execution in which a successor to a party is involved are not included in the manner of execution by certified copy alone.
Linking this text with the fixed conclusion reached above makes clear why the detailed distinctions within the stage are necessary. The determination that no granting of an enforcement formula is required and the determination that the very execution is possible on the certified copy alone diverge from each other, and obtaining the former determination does not allow it to be extended to the latter with the same value. The proviso, that the manner of execution changes where the circumstance of succession intervenes, is the ground for that distinction. Execution with attached conditions or execution involving a successor is already placed within the list of exceptions, so the distinction within the stage is limited to the case that operates, where the small-claims range and the oral reasons, the efforts at statutory recordation, and the finalization of the decision recommending performance together with the special execution rules are observed, and the case that is blocked, namely an attempt to execute on a decision that does not yet have the effect of finality, or where procedures remain within the conditions and succession exceptions.
The counterargument that such a distinction may weaken predictability is not a small one. Its basis is the anxiety that if sufficient reasons and the opportunity to contest are guaranteed together for every small case, the expedition of the system disappears; and from the debtor's standpoint it may appear unclear on what grounds and by when an objection must be raised. The special rule on the time limit prescribes, in Article 5-8 (3) of the Trial of Small Claims Act, that as to the assertion of an objection to the enforcement of a claim the restriction under Article 44 (2) of the Civil Execution Act does not apply; to carry that restriction over as it stands would erase the very boundary this provision has drawn.
What can be confirmed in the synthetic scene is only the fact that plaintiff A received a decision recommending performance but has not obtained actual payment, and the fact that defendant B is asking about the opportunity to object. Since the grounds for finality and the case classification necessary for the scope of application have not been confirmed, there remain parts that must be left as undetermined, and here a lack of materials is not converted at once into an absence of remedy. Where the grounds for the decision becoming final are unconfirmed, to hasten execution on the certified copy alone falls within the case that is blocked.
Accordingly, what this section permits is to read separately each of the principle of execution on the certified copy under a decision recommending performance, the exceptions for conditions and succession, and the special rule on the time limit for grounds of objection to the enforcement of a claim; what it does not permit is to unfold those three as a single rule and transplant, without exception, the enforcement formula and objection-to-claim rules of an ordinary judgment. Decision is rendered narrowly on the confirmed conditions alone, everything else is left undetermined, and so long as procedures necessary for the conditions and succession exceptions remain, one does not proceed to execution on the certified copy alone.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
In this scene, the present question is whether the road to execution on the basis of the certified copy is open to the plaintiff, and whether the place to assert objections remains to the defendant. Confirming that the finality of the decision, the manner of execution, and the timing of the objection are each distinct issues is the starting point of this question.
The text applicable to this question directly prescribes the manner of compulsory execution pursuant to a decision recommending performance. Article 5-8 provides that "compulsory execution pursuant to a decision recommending performance shall be effected on the basis of a certified copy of the written decision recommending performance under Article 5-7 (2), without the need to obtain an enforcement formula," while making execution to which conditions are attached and execution involving a successor to a party exceptions (Trial of Small Claims Act, Article 5-8). Here the actor is the plaintiff applying for execution, the act is compulsory execution on the basis of the certified copy of the written decision recommending performance, and the condition is that the decision is a decision recommending performance that has become final. Paragraph (3) of the same Article states definitively that, as to the assertion of an objection to the enforcement of a claim, the restriction under Article 44 (2) of the Civil Execution Act does not apply (Trial of Small Claims Act, Article 5-8).
The link joining this text with the conclusion reached above is that the manner of execution and the timing of the objection are different tests. The exemption from the enforcement formula is a special rule of manner attached to the limited title of the certified copy of the written decision recommending performance, while the exclusion of restrictions on objection to the enforcement of a claim is a separate special rule that widens the timing of the defense the debtor may raise against that decision. If the two special rules are taken as a single bundle and the rules on the issuance of the enforcement formula or the time rules for objection to the enforcement of a claim in an ordinary judgment are substituted as they stand, the distinction between the exceptions and the special rules fixed by this provision is erased. Conversely, where one seeks to execute on the certified copy alone a decision that does not yet have the effect of finality, or where one falls within the conditions and succession exceptions but has not completed the remaining procedures, the door to this special rule is closed.
The counterargument that this special rule may weaken the predictability of the general execution rules points to a substantive loss. If the enforcement formula and the deadline for objection to the enforcement of a claim are not fixed in the same form, the creditor can hardly gauge in advance when and on what title execution may be carried out, and the debtor can easily miss the point at which he may defend himself. It is the criticism that, in exchange for simplifying the procedure, both parties must bear uncertainty. This provision prescribes the dispensing with the enforcement formula and the exclusion of restrictions on objection to the enforcement of a claim in separate paragraphs respectively, and attaches the conditions and succession exceptions to the former, keeping the special rule open only within a narrow range. The inconvenience flagged by the counterargument remains, but an answer that would erase, on account of that inconvenience, even the distinction of special rules prescribed by the provision is not one that can be undone.
What can be confirmed in this scene is only the fact that plaintiff A received a decision recommending performance and that actual payment has not yet been made, and that defendant B is asking about the opportunity to object. Measured against Article 5-8, the scene does not determine whether the decision has become final, whether conditions are attached to the execution, or whether succession of the parties has occurred. At this point, where the grounds for the decision becoming final and the case classification necessary for the scope of application are unconfirmed, one can neither assert categorically that this special rule has opened nor that it has been blocked. From the facts alone, namely the plaintiff's unrecovered payment and the defendant's request to object, the completion of execution or the effect of the objection cannot be fixed.
The conclusion this section permits is this. If the matter falls within the small-claims range and the oral reasons, the efforts at statutory recordation, and the finalization of the decision recommending performance together with the special execution rules were observed at that stage, then the execution of a finalized decision recommending performance requires no enforcement formula, and the certified copy of the written decision recommending performance suffices. If one seeks to execute on a decision that does not yet have the effect of finality alone, or if procedures necessary for the conditions and succession exceptions remain, that road is blocked. If the grounds for the decision becoming final or the scope of application are unconfirmed, the judgment is left undetermined. By contrast, the conclusion of transplanting and applying to a decision recommending performance the enforcement formula and objection-to-claim time rules of an ordinary judgment as they stand is not permitted by this section.
6.12이 권의 결론과 남는 물음
The preceding section found that where the small-claims range, the oral reasons, and the special rules on execution by certified copy are observed, the rule operates; that where one seeks to execute on a decision before finality alone, the road is blocked; and that where the case classification is unconfirmed, matters remain undetermined. If that distinction is accepted, what remains is the question of what the conclusion of this section hands down to the next question. In this scene, the manner in which A proceeds to execution and the manner in which B defends are at issue together.
The statutory text addressed in this section describes the manner of execution first as follows. Here "enforcement formula" is a separate notation that confirms the enforceability of an ordinary judgment, and "certified copy" means the document, among duplicates of the written decision recommending performance, that is produced for execution. The same Article provides that this principle is not applied in three cases: where conditions are attached to the execution; where execution is carried out for a successor to a party; and where execution is carried out against a successor.
The actor prescribed by this source text is the plaintiff applying for execution, the act is compulsory execution grounded on a finalized decision recommending performance, and the condition is the state in which a certified copy of the written decision recommending performance has been produced without the granting of an enforcement formula. Here two stages must be distinguished. Whether one executes on the certified copy without an enforcement formula, and whether such execution obtains effect, are not the same question. The former is the manner of execution, while the latter depends on the finality of the decision. The author distinguishes these two determinations, holding that the special rule permitting execution on the certified copy alone does not thereby supply the effect of finality. Paragraph (3) of the same Article provides that "as to the assertion of an objection to the enforcement of a claim, the restriction under Article 44 (2) of the Civil Execution Act shall not apply" (Trial of Small Claims Act, Article 5-8). This is a special rule under which, in an objection to the enforcement of a claim against a decision recommending performance, the time limit on the grounds therefor is not accepted.
There is a counterargument that this special rule may weaken the predictability of the general execution rules. The concern follows along with it that if sufficient reasons and the opportunity to contest are guaranteed for every small case, the expedition of the system disappears. If the procedure for granting the enforcement formula attached to an ordinary judgment and the time limit for objection to the enforcement of a claim are left as they stand, plaintiff A is driven away from swift execution; if all are removed, the defense of defendant B narrows. In the same manner as the general special rule, that where conditions or succession arise execution is carried out on the certified copy alone without an enforcement formula, is not applied as it stands, a separate special rule suited to a decision recommending performance must be laid down as to the time limit as well.
The facts in the synthetic scene relevant to this question are only that A received a decision recommending performance and has not received actual payment, and that B is asking about the opportunity to object. The grounds for the finality of the decision, the presence or absence of conditions attached to the execution, and whether succession of the parties has occurred are not settled by the scene. If the state is one of seeking to execute on a decision recommending performance before finality alone, then by the standard of the preceding section it is blocked, and if procedures necessary for the conditions and succession exceptions remain, that too cannot use the general special rule as it stands. Unless the grounds for the finality of the decision and the case classification necessary for the scope of application are confirmed, the manner of execution cannot be fixed from the scene alone.
The conclusion this section permits is to distinguish and read separately the manner of execution under a decision recommending performance, the exceptions for conditions and succession, and the special rule on the time limit for grounds of objection to the enforcement of a claim. What it does not permit is to hold, on the strength of the special rule on execution by certified copy, that execution is possible even on a decision lacking the effect of finality, or conversely to copy the rules of an ordinary judgment as they stand. This is the extent of the special rules on the simplified title, and the next question passes on to how that title is to be evaluated domestically. If one prevails abroad, does effect arise in this country just as it stands?
Statutes referred to
Questions left open
- How shall one examine whether a brief judgment weakens the substance of non-acquiescence?
- What are the costs that litigation support does not reach?
- How shall one distinguish whether the abandonment of a small claim is a rational choice or an institutional failure?