Summary
The necessary dispositive part must be made clear at the claim stage, but the requirements for an enforcement title must be satisfied separately.
6.1The Standard by Which the Path Opens
Even if the starting point of relief is correct, the performance following the judgment does not arrive of its own accord. Taking up the conclusion of the preceding section—that, as in a creditor's revocation action, one must follow the requirements for revocation and restitution prescribed by law, and that a new right of formation cannot be created by equity alone—the question that remains is what door opens after the judgment. This door means the path leading to the title of execution, that is, the statutory document that serves as the basis for compulsory execution. Plaintiff A wishes defendant B to deliver the thing agreed upon, but since the draft states only a confirmation that the right exists, the remaining question is what the standard is by which the passage of this relief opens.
The first source text corresponding to this question concerns the principle of party disposition. Article 203 of the Civil Procedure Act provides: “The court may not render a judgment on a matter for which a party has made no application.” In this wording, the court is the subject of the judgment, the application of the party is its premise, and a matter for which no application has been made is what is excluded from the judgment. Thus, this Article indicates what is needed to specify in the prayer for relief the performance, the parties, and the conditions of the performance desired by the person who seeks it, but it does not address the other requirements of a title of execution.
Article 24 of the Civil Execution Act separately prescribes the document that serves as the basis for compulsory execution. Its wording provides that compulsory execution “shall be based on a final judgment that has become final and conclusive or a final judgment accompanied by a declaration of provisional execution.” Here, finality and the declaration of provisional execution are conditions attached to the written judgment, and compulsory execution is based on a document in which those conditions are fulfilled. The reason for distinguishing these two stages is that the fact that the operative part needed for the claim has been specified and the fact that the operative part has actually been pronounced in a document that can serve as the basis for compulsory execution are different from each other. The entrance to this relief opens where the thing, the act, and the counterparty demanded have been specified in the prayer for relief and the requirements for judicial protection of the chosen action have been satisfied. The determination that the entrance has opened does not substitute for the determination that actual performance has been reached by passing through that door.
The counterargument to this standard aims at the loss and the inconvenience together. It regards it as too early to be discussing execution at a stage where even victory or defeat has not yet been determined. The concern is whether the shape of the claim is being constructed before any examination of whether the person who filed the action has shown the substance of the right, and whether technical classification is being placed ahead of the right. It may sound like a demand to widen, into the form of performance, a dispute that might well be adequately resolved by confirmation alone. But the foregoing answer is that the pronouncement cannot be turned into actual performance. This answer does not erase the costs pointed out by the counterargument. It means only that those costs do not invalidate the demand that the requirements for a title of execution be examined separately.
One fact is confirmed in the synthetic scene. Plaintiff A wishes defendant B to deliver the thing agreed upon, but the draft states only a confirmation that the right exists. Setting this draft against the foregoing conditions reveals the distinction that the operative part demanded is delivery while the operative part secured is confirmation of a right. Whether the thing, the act, and the counterparty demanded can be said to have been specified in the prayer for relief, and whether the legal relationship to be confirmed and the present insecurity have been specified by the materials of the complaint, are not determined by this scene alone. If it is confirmed that a claim seeking only confirmation has been converted into a lawful claim for performance, the assessment of the possibility of a performance order is made anew. Accordingly, whether the operative part has been specified and the legal interest in confirmation remain undetermined.
The conclusion permitted by this section is narrow. Where a party desires performance but the operative part secured goes no further than confirmation of a right, or where the legal interest in confirmation is not recognized, the entrance to a claim ordering the performance demanded does not open, and the reason lies in the prayer for relief, which remains within the form of confirmation. Conversely, where the operative part demanded and the present legal insecurity have not been specified, no definitive determination can be made. Here, the statement that the entrance to performance has opened must not be read as translating into the result of actual payment, delivery, or recovery. It means that the door has opened; it does not mean that one has passed through the door and arrived.
6.2The Conditions That Block Relief
As in a creditor's revocation action, one must follow the requirements for revocation and restitution prescribed by law, and a new right of formation cannot be created by equity alone. The premise that the requirements prescribed by law are respected continues here as well. Then what door remains after a judgment has been obtained? The kind of operative part secured and the form of the claim determine the direction of this door.
The necessary operative part must be made clear at the claim stage, while the requirements for a title of execution must be satisfied separately. This standard can be confirmed in the wording of Article 203 of the Civil Procedure Act. The Article provides: “The court may not render a judgment on a matter for which a party has made no application.” The subject indicated by this wording is the court that renders the judgment; the prohibited act is a judgment on a matter for which no application has been made; and the condition is whether the party has made an application for that matter. The matters on which the court may render judgment are limited to those for which the party has made an application.
This connects the wording of Article 203 of the Civil Procedure Act with the standard set out above. Where the operative part applied for by the party goes no further than confirmation, the court cannot set down an operative part that goes beyond that confirmation. What was requested and what was pronounced must correspond. Here, the operative part of confirmation and the operative part of performance must be distinguished. A party who desires performance must apply for a claim ordering performance, and where the operative part secured remains at confirmation of a right, no judgment containing more than that can be expected. The case in which the legal interest in confirmation is not recognized is no different. If the door of the action for confirmation closes, relief through that path is not achieved. Either way, if even one of the statutory requirements is not satisfied, the passage of relief closes.
There is the observation that discussing execution at this point is premature. In a situation where victory or defeat has not yet been determined, the concern is that examining the enforceability of the judgment places technical classification ahead of the existence of substantive rights. The criticism that excessive emphasis on the form of the claim may cause the substance of the right to be missed has the same root. Whether service or the success of actual performance has occurred has not been confirmed either. Such losses and inconveniences cannot be denied. Even so, the pronouncement cannot be turned into actual performance. The pronouncement of a judgment and the performance of the actual payment or delivery are separate matters, and the requirements for reaching the desired performance must be satisfied separately.
In this scene, when a claim seeking only confirmation is contrasted with a claim ordering performance, the kind of operative part specified in the prayer for relief differs. By contrast, if the operative part secured goes no further than confirmation of a right, or if the legal interest in confirmation is not recognized, then the passage of this relief closes. Materials are needed concerning the prayer for relief of the complaint, the legal relationship to be confirmed, the present insecurity, and other means of relief. On the present scene alone, the outcome of the judgment and the consummation of performance cannot be determined.
What this section confirms is the narrow conclusion that where a party desires performance but the operative part secured goes no further than confirmation of a right, or where the legal interest in confirmation is not recognized, the passage of relief closes if even one of the statutory requirements is not satisfied. The entrance to a claim ordering the performance demanded opens on the condition that the operative part is made clear in the prayer for relief and the requirements of the relevant action are met. This conclusion does not determine the finality of the pronouncement itself or the consummation of actual performance. The state of insufficient materials remains undetermined, and relief does not become impossible on that ground alone. Where the operative part demanded or the present legal insecurity has not been specified either, the determination remains undetermined. Ascertaining the kind of operative part secured is distinct from altering the content of the judgment.
6.3The Boundary That Remains When There Is No Data
Setting out from the premise that the requirements for revocation and restitution prescribed by law could not be newly created by equity alone, the analysis enters the present question. The next question is what door remains after a judgment has been obtained, and where the boundary lies that cannot be determined for want of materials. In particular, where the operative part demanded and the present legal insecurity are not clearly revealed, the question remains how that gap is to be handled.
The standard that the necessary operative part must be made clear at the claim stage while the requirements for a title of execution must be satisfied separately is supported by two texts in different places. This wording indicates that the court, the subject of the judgment, cannot go beyond the scope of what has been applied for, and makes clear the condition that matters not put forward by the parties cannot become the subject of the judgment.
Article 24 of the Civil Execution Act provides: “Compulsory execution shall be based on a final judgment that has become final and conclusive or a final judgment accompanied by a declaration of provisional execution.” The subject spoken of in this wording is the enforcement agency, the act is compulsory execution, and the condition is a final judgment that is final and conclusive or accompanied by a declaration of provisional execution. Reading the two Articles together reveals that obtaining a judgment by specifying the operative part demanded and extracting performance by taking that judgment as a title of execution are determinations at separate stages. Herein lies the reason why the former does not automatically guarantee the latter.
The counterargument that it is too early to be discussing execution at a stage where even victory or defeat has not yet been determined points to the loss of having the technical classification of the prayer for relief placed ahead of the substance of the right. Even upon reaching the entrance to a claim ordering the performance demanded, if the operative part secured by a party desiring performance goes no further than confirmation of a right, or if the legal interest in confirmation is not recognized, the performance order does not open. In that case, the inconvenience spoken of by the counterargument cannot be ignored, in that it results in attending to form while leaving the substantive insecurity untouched. That inconvenience, however, cannot change the foregoing premise that even the requirements for revocation and restitution prescribed by law could not be newly created by equity, and the answer that the pronouncement cannot be turned into actual performance remains as it is.
In the scene where plaintiff A wishes defendant B to deliver the thing agreed upon but the draft states only a confirmation that the right exists, the thing demanded and the counterparty are specified as A and B, but the operative part secured remains at confirmation. Materials concerning the prayer for relief of the complaint and the legal relationship to be confirmed, and materials concerning the present insecurity and other means of relief, have been established, but the results of service and performance in an actual case have not been collected. Accordingly, on this scene alone the possibility of a performance order cannot be determined, and matters for which the materials of determination have not been specified are not declared impossible but are left undetermined.
The conclusion permitted by this section goes no further than this: where the operative part demanded or the present legal insecurity has not been specified, matters for which the materials of determination have not been specified are kept undetermined, distinguished from impossibility; it does not go on to say that performance is impossible or that performance has been completed. The fact that there are no materials is undetermined, not immediately an impossibility of relief, and the definition of the title of execution as the statutory document that serves as the basis for compulsory execution indicates only that the requirements for that document must be satisfied separately; it does not mean the result of actual payment or delivery.
6.4The Records Needed for Determination
The question remaining in this scene is what door remains after a judgment has been obtained, and, if a determination is to be made, which records are needed.
Article 203 of the Civil Procedure Act states: “The court may not render a judgment on a matter for which a party has made no application.” The subject indicated by this wording is the court, the act prevented is a judgment on a matter outside the application, and the condition is that the party did not apply for that matter. By binding the scope of the judgment to the application, this wording means at the same time that a party seeking to obtain something must first leave on the record what it is that the party applied for.
This basis and the conclusion of the present question are connected as follows. What is specified in the prayer for relief of the complaint, what the legal relationship for which confirmation is sought is, and what the materials concerning the present legal insecurity and other means of relief are, are determined On the records. The stage determination is made only on these established records, and gaps in the records are not filled by inference. The presence or absence of the records and the question whether the recorded content satisfies the requirements must be distinguished. The former means a state that cannot be determined; the latter is a determination that compares the established materials against the requirements.
The strongest counterargument is that it is too early to be discussing execution at a stage where even victory or defeat has not yet been determined. This counterargument aims at the loss of having technical classification, such as the form of the claim, placed ahead of substantive rights. The author's answer, however, has its direction fixed by the point that the pronouncement cannot be turned into actual performance. Making the operative part clear at the claim stage and satisfying the requirements for a title of execution separately are kept distinct. Even if one is confirmed later, the other is not thereby completed of its own accord.
Plaintiff A wished defendant B to deliver the thing agreed upon, yet the draft stated only a confirmation that the right exists. Setting this fact against the record requirements reveals that the operative part specified in the prayer for relief of the complaint is confirmation, and that delivery of the thing demanded was not specified. Materials concerning the legal interest in confirmation—that is, materials concerning the present insecurity and other means of relief—were likewise not confirmed on the records. The facts that cannot be determined on this scene alone are the outcome of the judgment, service, and the presence or absence of performance; as to these, the matter remains undetermined.
All that this section permits is the narrow adjudication that compares the operative part confirmed On the records with the requirements; it permits neither a determination that fills in absent records nor a judgment treating the pronouncement as performance.
6.5Circumstances That Change the Decision
What question remains in this scene? If a draft containing only a declaration becomes the judgment itself as written, in what form does the performance of delivery that A sought remain after the judgment? It examines what difference is made in this scene by the standard that the order needed at the claim stage must be made clear, while the requirements of an enforcement title must be satisfied separately. The starting point of this question is that a claim seeking performance and a claim containing only a declaration of rights are not placed in the same position.
Article 203 of the Civil Procedure Act provides: “The court shall not adjudicate a matter on which the parties have not made a motion.” The subject indicated by this text is the court, the prohibited act is adjudication of a matter not moved for, and the condition is the absence of a motion by the parties. Accordingly, the boundary set by this Article is that, where A's prayer for relief contains only a declaration, the court cannot ex officio order performance of delivery. Identifying first what the order of the claim is concerns delimiting the scope of the court's judgment, and lies on a different axis from the question of whether execution becomes possible later.
Article 24 of the Civil Execution Act provides: “Compulsory execution shall be effected on the basis of a final judgment that has become final and conclusive or a final judgment with a declaration of provisional execution.” The subjects spoken of in this text are the creditor who carries out the compulsory execution and the enforcement agency, and the document required is a final judgment that has become final and conclusive or a final judgment with a declaration of provisional execution. Here an enforcement title means the statutory document that forms the basis of compulsory execution. The determination that clarifies the order at the claim stage is distinct from the determination of whether that judgment satisfies the requirements of an enforcement title. If the former determination opens the door to the possibility of a performance order, the latter asks whether that judgment can serve as the basis of compulsory execution.
The counterargument that it is premature to consider execution at a stage where victory or defeat has not yet been decided aims at the loss that, if the form of the claim is placed unduly in the fore, technical classification takes precedence over the substance of the right. If A is in fact entitled to take delivery, the fact that performance is blocked merely because the draft takes the form of containing only a declaratory sentence produces a dissonance between the substance of the party's right and the form of procedure. Yet the scope within which this counterargument is answered is fixed. A pronouncement cannot be converted into actual performance. That is, the fact that the order for performance is not contained in the judgment cannot thereafter be dismissed as a mere formal defect and lead directly to execution for delivery. Without erasing the importance of the substance of the right that the counterargument points out, the specification of the order at the claim stage and the requirements of an enforcement title must be viewed separately.
The facts that can be confirmed in the synthetic scene are that A, seeking delivery of the object agreed upon between A and B, recorded in the draft only a declaration that the right exists. Setting this fact against the foregoing conditions, the performance demanded is delivery, while the order secured stops at a declaration of rights; hence it is a case in which performance is wanted but the order secured stops at a declaration of rights. However, what the present legal uncertainty is, how the legal relationship to be declared has been specified, and in what state other remedies stand, are not fixed in the scene. Where the demanded order or the present legal uncertainty is not specified, the matter remains undetermined.
The conclusion this section permits is that, if it is confirmed that a claim seeking only a declaration is converted into a proper claim for performance, the determination of the possibility of a performance order is made anew. The conclusion not permitted is the statement that the pronouncement is converted into actual performance, so that execution for delivery is accomplished immediately. The scope of the order contained in the judgment and whether that judgment satisfies the requirements of an enforcement title are determined separately.
6.6The Strongest Counterargument and the Answer
Looking to a draft containing only a declaration that a right exists, what plaintiff A wants is delivery of an object from defendant B. Yet first comes the counterargument that it is premature to consider execution at the present time, when victory or defeat has not yet been decided. What remains, then, is how a pronouncement that stops at a declaration can be carried through to the actual performance that plaintiff A sought. One must ask what door remains after judgment has been rendered.
The text that answers this question is found in Article 203 of the Civil Procedure Act. Here the subject is the court that renders the judgment, the act is the pronouncement of matters to be determined by judgment, and the condition is that the matter must be included within the matters for which the parties have made a motion. This text does not go so far as to set out the requirements of an enforcement title. It merely binds the scope of the pronouncement to the motion.
The reason why the order needed at the claim stage must be made clear lies here. At the entrance of a claim seeking an order for the performance demanded, the object, act, and counterparty demanded must be specified in the prayer for relief, and the requirements for judicial protection of the chosen action must be satisfied. Distinct from this, an enforcement title, as the statutory document that forms the basis of compulsory execution, satisfies its requirements separately. Where performance is wanted but the order secured stops at a declaration of rights, or where the legal interest in a declaration is not recognized, the two stages have come apart.
The counterargument that it is premature to consider execution at a stage where victory or defeat has not yet been decided aims at the loss that, if the form of the claim is placed unduly in the fore over the substance of the right, technical classification takes precedence. The conclusion that a pronouncement cannot be converted into actual performance follows this distinction. Without erasing the inconvenience of placing the form of the claim in the fore, it merely confirms that a separate legal door is needed to reach performance.
This distinction is applied to this scene as it stands. Where plaintiff A wants delivery of the object agreed upon between plaintiff A and defendant B but the draft records only a declaration that the right exists, materials concerning the prayer for relief of the complaint, the legal relationship to be declared, the present uncertainty, and other remedies must be entered in the records. The facts, service, or results of performance of an actual case, or victory or recovery, are not set in the synthetic scene.
Accordingly, what this section permits is no more than the distinction between making the order needed at the claim stage clear and the need to satisfy the requirements of an enforcement title separately. The conclusion that converts a pronouncement into actual performance is not permitted by this section.
6.7The Link to the Application and the Dispositive Part
Although the preceding section took up the premise that a pronouncement cannot be converted into actual performance, it remains to be seen on the basis of which document such a pronouncement is carried through to performance. In this scene, what door remains after judgment has been rendered?
Article 203 of the Civil Procedure Act is a provision of the principle of party disposition, and it lays down the text: "The court shall not adjudicate a matter on which the parties have not made a motion." The subject indicated by this text is the court, the prohibited act is adjudication of a matter outside the motion, and the condition is that the parties have not made a motion on the matter in question. It is the meaning of the text that the range of matters the court may adjudicate is bound to the matters moved for.
Accordingly, one who seeks to obtain performance must, at the starting point of the judgment, specify the performance demanded by motion, and open the path along which the order containing that motion is pronounced. Yet the fact that the order has been pronounced and whether one has obtained the statutory document that forms the basis of compulsory execution, that is, an enforcement title, are separate determinations. The former determination examines whether the performance demanded has been organized into an order; the latter examines whether that order has met the requirements of the document serving as the basis of execution. Only by separating the two stages can one ask separately what the performance demanded was and what the document is that will carry that performance through to the end.
This counterargument aims at the inconvenience and loss that, if the form of the claim is placed unduly in the fore, technical classification takes precedence over the substance of the right, and one who has brought a lawsuit may find his feet bound by the choice of forms rather than by the relief of rights. Requiring the specification of the order at the claim stage does not erase all of that inconvenience, but neither can an order that has not been secured be turned about and made the basis of execution.
Two facts in this scene bear on this question. The performance demanded was delivery of an object, but the order secured stopped at a declaration of rights; thus the demanded order and the secured order did not mesh with one another. However, whether plaintiff A's present legal uncertainty has been specified and whether other remedies exist cannot be determined from the scene alone and remain undetermined. If a claim seeking only a declaration is converted into a proper claim for performance, the determination of the possibility of a performance order is made anew.
What this section permits is the determination that, where the object, act, and counterparty demanded have been specified in the prayer for relief and the requirements for judicial protection of the chosen action have been satisfied, the order containing that demand may become the subject of a pronouncement. What it does not permit is the determination that, without such specification, an order already secured is converted into the statutory document that forms the basis of execution. Where performance is wanted but the order secured stops at a declaration of rights, or where the legal interest in a declaration is not recognized, the problem of the demanded order cannot be solved.
6.8The Scope This Section Undertakes
What door remains after judgment has been rendered? Making clear the order needed at the claim stage while the requirements of an enforcement title must be satisfied separately is the question of this section.
The first text is Article 203 of the Civil Procedure Act. That provision states: "The court shall not adjudicate a matter on which the parties have not made a motion" The subject indicated by this text is the court that renders the judgment, the act it governs is adjudication of a matter outside the motion, and the condition is the fact that the parties did not move for that matter. Accordingly, only the order written in the prayer for relief of the complaint becomes the subject of judgment.
Article 24 of the Civil Execution Act provides: "Compulsory execution shall be effected on the basis of a final judgment that has become final and conclusive or a final judgment with a declaration of provisional execution" The former provision addresses what shall be moved for at the claim stage; the latter addresses which document will serve as the basis of compulsory execution at the execution stage. An enforcement title means the statutory document that forms the basis of compulsory execution, and the requirements of that document are not automatically met by the mere pronouncement of a judgment.
Further, the inconvenience that a victorious judgment alone may not actually resolve a conflict between neighbors is also placed alongside this counterargument. The specification of the order at the claim stage and the satisfaction of the requirements of an enforcement title are separate determinations, and when this distinction is erased, the risk the counterargument points out grows rather than diminishes.
There is only one fact that can be confirmed in the synthetic scene. Although plaintiff A wants delivery of the object agreed upon, the draft records only a declaration that the right exists. This draft does not stand at the entrance of a claim seeking an order for the performance demanded, and the order it seeks to secure stops at a declaration. Whether the legal interest in a declaration is recognized, or whether defendant B bears any obligation to deliver, is not determined by this scene alone and remains undetermined.
What this section permits is the work of specifying the object, act, and counterparty demanded in the prayer for relief at the claim stage, and the holding of the distinction that the requirements of an enforcement title must be satisfied separately. What it does not permit is the conversion of a pronouncement into actual performance; nor does it treat the securing of the basis document for compulsory execution by an order of declaration alone as accomplished.
6.9Application of the Text of the Provisions and the Holdings of Precedents
Under the premise that, as in a creditor's revocation action, one must follow the statutory requirements for revocation and restitution, and that equity alone cannot create a new right of formation, the problem remaining now is what door remains after judgment has been rendered. In this scene, one asks which text applies at the entrance of a claim seeking an order for the performance demanded.
Among the relevant source text, Article 203 of the Civil Procedure Act provides: “The court shall not adjudicate a matter on which the parties have not made a motion.” Accordingly, where the plaintiff has set out only a declaratory judgment or a constitutive judgment in the prayer for relief, the court cannot add ex officio an order for payment of money or for performance of restitution; therefore, in order to secure even a compulsory execution title (Article 24 of the Civil Execution Act), the plaintiff must join a claim for performance or structure the claim as a principal and alternative claim. In this text, the court is the subject of judgment, a matter not moved for is a matter that cannot be adjudicated, and the matters moved for by the parties form the boundary of the judgment. Accordingly, what order the court may issue is determined within the scope of the matters moved for by the parties. At the entrance of a claim seeking an order for the performance demanded, this text requires only the specification of the matters moved for, and does not simultaneously address the requirements of other provisions.
Here, a final judgment that has become final and conclusive and a final judgment with a declaration of provisional execution are each the basis document of compulsory execution, and compulsory execution is effected only on the basis of that document. These two texts distinguish the entrance of the claim from the entrance of execution. Since the former text fixes the limits of the matters that may be adjudicated and the latter fixes the basis document of compulsory execution, the entrance of a claim seeking an order for the performance demanded is determined by the text of the relevant source alone. The definition that an enforcement title is precisely the statutory document that forms the basis of compulsory execution, too, is placed only within this distinction.
This means that, if one quibbles over the wording of the order before the outcome of the lawsuit is even produced, the actual benefit the party wants is relegated to the background, and the inconvenience arises that the result is divided merely by the labels of declaration and performance. A pronouncement only determines the matters declared by judgment; the agreed object is not delivered of its own accord. Therefore, the conclusion stands that the order needed at the claim stage must be made clear while the requirements of an enforcement title must be satisfied separately.
The facts relevant to this question in the synthetic scene are that plaintiff A wants delivery of the object agreed upon between plaintiff A and defendant B, while the draft records only a declaration that the right exists. Since the object demanded is the subject of delivery and the counterparty is specified as defendant B, there are facts worth comparing against the condition of asking whether the object and counterparty demanded have been specified in the prayer for relief at the entrance of a claim seeking an order for performance. On the other hand, since the wording of the draft stops at a declaration of rights, one examines whether it is a case in which the order secured remains at a declaration of rights. Because there are no materials in the scene concerning whether the legal interest in a declaration is recognized, whether other remedies exist, and what the present legal uncertainty is, the matter remains undetermined.
The conclusion this section permits is that, where the object, act, and counterparty demanded have been specified in the prayer for relief and the requirements for judicial protection of the chosen action have been satisfied, the entrance of a claim seeking an order for the performance demanded is opened; and that where performance is wanted but the order secured stops at a declaration of rights, or where the legal interest in a declaration is not recognized, that determination is barred. Where the demanded order or the present legal uncertainty is not specified, the matter is undetermined, and a lack of materials is not converted at once into an inability to obtain relief. Materials concerning the prayer for relief of the complaint, the legal relationship to be declared, the present uncertainty, and other remedies become the records of the determination. Here, the specification of the order and the requirements of an enforcement title are separate stages, and an extension beyond the text of the relevant source is not the conclusion of this section.
6.10Fine Distinctions Within the Stage
The question that remains in this scene is what part is to be judged separately within the entry point of a claim seeking an order for the demanded performance. Where the demanded performance and the operative part actually written in the statement of claim diverge, the range of what the court may decide must first be fixed.
The starting text for this question is Article 203 of the Civil Procedure Act. Here the subject is the court, the act is the judgment, and the condition is that the matter is one for which a party has not applied. Accordingly, the object of the judgment remains within the scope of the operative part stated in the statement of claim. This Article fixes only the scope of the operative part; it does not determine what form that operative part must take. Clarifying the operative part necessary at the claim stage presupposes this condition.
While observing the above condition, two determinations are kept separate. One is the determination whether the claim takes the form of ordering the demanded performance; the other is the determination whether that judgment serves as an enforcement title. Under this wording, the basis of compulsory execution is a final judgment that has become conclusive or a final judgment with a declaration of provisional execution. Therefore, even if the operative part is clarified at the claim stage, the requirements for an enforcement title must be satisfied separately.
The strongest counterargument is aimed at the point that it is too early to consider execution at a stage where even victory or defeat has not yet been decided. This counterargument concretely lays bare the inconvenience of technical classification taking precedence over substantive rights, and the loss suffered by the right-holder while awaiting recovery. Yet the author's answer does not depart from the point that a pronouncement cannot be turned into actual performance. Distinguishing the form of the claim is not an act of disparaging rights, but work done so as not to erase the fact that there are separate conditions by which a judgment leads to actual performance.
What can be confirmed in the synthetic scene is that the demanded performance and the operative part in the draft differ. The demanded performance is delivery of an object, and the operative part written in the draft is a confirmation that a right exists. According to this contrast, if the object, act, and counterparty demanded are specified in the statement of claim and the requirements for judicial protection (interest in judicial protection) of the chosen action are satisfied, a determination on the possibility of a performance order can be made. Conversely, if performance is desired but the operative part secured stops at confirmation of a right, or the legal interest in the confirmation is not recognized, the determination on the performance order is blocked. The judgment in cases where the demanded operative part or the current legal uncertainty is not specified cannot be decided from this scene alone and remains undetermined.
The conclusion permitted in this section goes no further than this: within the entry point of a claim seeking an order for the demanded performance, the determination is divided, limited to the stated conditions. Unless additional steps are invented, or an operative part that stops at confirmation is replaced by an order for performance, the form of the judgment and the requirements for an enforcement title each remain as they are.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
That conclusion leaves the premise that the ground for the legal effect to be created must be prescribed by statute. In this scene, what A seeks to obtain is not a declaration of a right but an order directing B to deliver an object. Yet the operative part written in the draft stops at confirmation. Within the entry point of a claim seeking an order for the demanded performance, how are effective, blocked, and undetermined distinguished?
Before answering this question, the relevant wording is examined first. Article 203 of the Civil Procedure Act provides, "The court may not render a judgment on a matter for which a party has not applied." The subject indicated by this wording is the court that pronounces the judgment; the conduct it regulates is a judgment that goes beyond the matter applied for; and its condition is that the party did not apply for that matter. Accordingly, the court cannot itself select and pronounce a performance beyond the operative part specified in the statement of claim. Clarifying the operative part necessary at the claim stage is the work this wording demands. Only when what the demanded object, act, and counterparty are has been specified by the application can the object on which the court may render judgment be fixed.
This wording connects with the preceding conclusion. If a new legal effect arises only where statutory requirements exist, the fact that the object of the demanded performance was not specified in the statement of claim by itself closes the door to effectiveness. Here two determination stages must be distinguished. The first is the entry point of the claim: what operative part has been applied for. The second is the requirement for an enforcement title: whether a judgment ordering that operative part functions as the foundational document of compulsory execution. If these two stages are mixed, one is led to speak as though securing performance follows immediately from the mere fact that the claim has been opened.
The strongest counterargument to this distinction points to a clear place. It is excessively early to consider execution at a stage where even victory or defeat has not yet been decided, and if the form of claim is put first, technical classification takes precedence over the substance of the right. The claim has already been filed and the court is hearing the case; to discuss in advance the form of a judgment document where there is not even a pronouncement is said to be of no real help to the parties. The loss this criticism targets is the situation in which the substantive right-holder is bound by the wording of the procedure and misses relief. Even so, the preceding answer stands. The requirements that a pronouncement of judgment and the document serving as the basis of compulsory execution must each meet are different questions, and confirming the former does not satisfy the latter.
The performance demanded in the scene is delivery of the object agreed upon, and the counterparty is Defendant B. Yet the operative part written in the draft is only a confirmation that a right exists. The case in which performance is desired but the operative part secured stops at confirmation of a right falls under the blocking condition of this section. Whether the legal interest in the confirmation is recognized, and whether the demanded order of delivery has been specified in the statement of claim, are matters to be judged against the materials on the statement of claim in the complaint, the legal relationship to be confirmed and the current legal uncertainty, and other means of relief. On the scene as it stands, what those materials show has not been ascertained. Accordingly, cases in which the demanded operative part is not specified, or the current legal uncertainty is not specified, remain undetermined.
The conclusion this section permits is this narrow. If the object, act, and counterparty demanded are specified in the statement of claim and the requirements for judicial protection (interest in judicial protection) of the chosen action are satisfied, the door to a performance order opens. If performance is desired but the operative part secured stops at confirmation of a right, or the legal interest in the confirmation is not recognized, that door is blocked. If the demanded operative part or the current legal uncertainty is not specified, it is left undetermined. This distinction, however, is not a determination that immediately raises a pronounced judgment to actual performance. An enforcement title is a statutory document serving as the basis of compulsory execution, and its requirements must be confirmed separately.
6.12이 권의 결론과 남는 물음
After accepting the points that one must follow the statutory requirements for rescission and restoration to the original state, and that equity alone cannot create a new formative right, the question remaining after judgment is obtained is now posed. This question stands at the place that decides whether the pronouncement itself immediately brings performance, or whether a separate procedure lies in between.
This wording limits the object handled by the court, the subject of the judgment, to the applications of the parties. Here "application" means the operative part written in the statement of claim in the complaint, and it refers to the item indicating the legal relationship to be fixed by judgment or the performance to be ordered. The subject indicated by the wording is the court, the act is the judgment, and the condition is that the matter must concern something for which a party has applied. The issues arising under other provisions are left outside the explanation of this paragraph.
The reason this Article takes the application as the boundary of the judgment is that it is distinguished from the boundary of the compulsory execution that lies after the judgment. If the scope of the application is what produces the judgment, then the requirements for an enforcement title are a separate determination asking whether that judgment has become conclusive or bears a declaration of provisional execution. If these two are combined into one stage, the duty to clarify the operative part at the claim stage may be misunderstood as immediately enabling execution.
The counterargument that it is too early to consider execution at a stage where even victory or defeat has not yet been decided worries about speed rather than loss. Its starting point is that, if the requirements for an enforcement title are examined before judgment, the party who filed the action is bound by technical classification unrelated to the substance of the right. Yet the answer that a pronouncement cannot be converted into actual performance does not depart from this section. The performance after judgment does not arrive unless it is based on a document meeting the statutory requirements of a final judgment that has become conclusive or a declaration of provisional execution; while the weight of the procedure pointed to by the counterargument is lessened, the conclusion that the clarity of the claim's operative part and the requirements for an enforcement title must be viewed separately is maintained.
Contrasting this fact with the preceding condition, the statement of claim in the complaint contains only confirmation of a right, and no operative part ordering delivery. As the draft stands, whether it has entered the entry point of a claim seeking an order for the demanded performance is undetermined, and what enforcement title remains under the confirmed right likewise cannot be settled from the scene alone. The answer to this question diverges only according to what the materials on the statement of claim in the complaint, the legal relationship to be confirmed and the current legal uncertainty, and other means of relief show.
The conclusion this section permits is that the work of clarifying the operative part necessary at the claim stage and the work of taking that judgment as an enforcement title are not bound together in a single determination. It lies beyond the scope of this section to erase the gap between the provisions that the court cannot render judgment on a matter not applied for and that compulsory execution is based on a final judgment that has become conclusive or a final judgment with a declaration of provisional execution, or to say that performance of delivery follows on its own from a declaratory judgment alone. Instead, if the demanded operative part is not specified, that is a matter of being undetermined, and when conditions arise for changing the operative part, the determination is made again. If this inquiry has made clear what door the judgment leaves open, the next question is who passes through that door. Once the choice of the form of claim and the design of the enforcement title are finished, the review follows of the party standing and the litigation capacity of the parties who will conduct that action.
Statutes referred to
Decisions referred to
Questions left open
- Under what conditions does a declaratory judgment reduce the need for a separate action for performance?
- Who should bear the cost of choosing the form of claim?
- What non-monetary recovery cannot be contained in a standard statement of claim?