Summary
Where the statutory proof cannot be furnished, a separate path exists in the form of an action for the grant of an execution clause.
6.1The Standard by Which the Path Opens
Matters halted at the threshold of documents must be distinguished from matters in which the right has been denied. As noted earlier, because an execution clause for a successor requires obviousness of the succession or proof by means of a certificate, a matter in which the documents are incomplete may appear, at that very point, as though the door to execution has been closed. Yet unless that impression is set aside, one will mistake the lack of documents for a denial of the right and treat them as one and the same. In the scene where Creditor B, holding a judgment against Organization A, demands that C, a member of the organization, perform the same obligation, if the certificate is lacking, is execution by succession blocked forever? To answer this question, one must first fix, with precision, the standard by which this channel of relief opens.
Article 33 of the Civil Execution Act directly addresses the procedure where proof cannot be furnished. Article 33 of the Civil Execution Act provides: "Where proof cannot be furnished, the creditor may file an action demanding issuance of an execution clause with the court of first instance." In this text, the subject is the creditor, the act is the filing of an action, and the condition is the case in which the required proof cannot be furnished. The action referred to here means the channel for contesting, through litigation, the proof required for an execution clause—namely, the action for issuance of an execution clause. The same provision does not extend so far as to assume responsibility for the stage of determining the existence or nonexistence of the substantive succession.
What connects this basis to the conclusion of this section is the distinction between the conditions under which the channel known as the action for issuance opens. Where one falls within the statutory personal scope to which the effect extends and either furnishes the proof required for execution by succession or contests the matter through the action for issuance, the entrance to this relief opens. These two are not the same stage of determination. The former is the personal connection as to whom the judgment's effect reaches; the latter is a question of the channel—as to by what procedure the proof is to be contested when the documents fall short. Unless these two are distinguished, the scope of effect and the manner of proof come to take each other's place.
The strongest counterargument targets the loss that such a distinction invites. It is said that if a new trial is required each time a succession occurs, the debtor can evade execution merely by transferring the right, and that the cost of additional litigation erodes the value of the succeeded right to that extent. This disadvantage is not a light one. Cost can make it difficult to exercise the right in practice, and delay in the procedure becomes a real burden borne by the successor. Even so, the lack of a certificate cannot be determined as the nonexistence of the substantive succession. The conclusion of this section, without erasing that disadvantage, is to separate the incompleteness of documents from a determination that denies the right.
In the synthetic scene, the facts corresponding to this question narrow down to three. The parties to the prior action are Organization A and Creditor B; the person to whom B's demand is directed is C, a member of the organization; and as for the kinds of materials to check, the reference time, the succession materials, the execution clause, and the relationship between the organization and its members are specified. These facts are not sufficient to determine whether C falls within the statutory scope of effect in the relationship with B, or whether the object and the timing of the succession are the same. If the relationship of being a member of the organization is confirmed as an independent individual right, the conclusion that the organization's judgment binds as a matter of course must change. Yet so long as no such confirmation exists, the lack of materials is left in a state of non-determination, and the succeeded right cannot be recorded as denied.
What this section permits is narrow. It extends no further than establishing, in a matter halted at the threshold of documents, the distinction that the channel may open toward furnishing the proof, together with the statutory standard by which that channel opens. What this section does not permit is foretelling the win or loss of a contest through that channel, or the results of actual payment, delivery, or recovery. Nor can cases of mere economic relation, where there is no statutory scope of effect or ground for succession so that the prior judgment cannot be executed against that person, be bound into the same channel.
6.2The Conditions That Block Relief
If the certificate is lacking, is execution by succession blocked forever? Creditor B, holding a judgment against Organization A, demands that C, a member of the organization, perform the same obligation. In this scene, if execution by succession is halted at the threshold of documents, whether that halt is to be taken as a denial of the right is the question that now remains. If cases of mere economic relation and cases that satisfy the statutory requirements are bundled together on one side, the effort of the preceding stage, which inquired into the scope of the prior judgment's effect, collapses. Thus what is at issue is not the presence or absence of proof, but where to place the axis of distinction.
The source text corresponding to this question is Article 33 of the Civil Execution Act. Its text provides: "Where the required proof under Article 30 (2) and Article 31 cannot be furnished, the creditor may file an action demanding issuance of an execution clause with the court of first instance" (Article 33 of the Civil Execution Act). Here the subject is the creditor, the act is the filing of an action demanding issuance of an execution clause, and the condition is the case in which the required proof cannot be furnished. This provision treats a situation of deficient proof not as a terminus but as the point at which a separate litigation channel opens. This paragraph does not expound the other requirements of Article 33 or the scope of examination in the action.
The fact that the provision sets a separate channel for situations of deficient proof connects with the conditions under which the channel of relief is blocked. In cases of mere economic relation, where there is no statutory scope of effect or ground for succession so that the prior judgment cannot be executed against that person, if even one of the statutory requirements is not satisfied, the channel of relief closes. Here two determinations must be distinguished. One is whether the succession exists in substance; the other is whether the proof required for an execution clause has been furnished. The fact that the certificate is lacking indicates only the latter state and creates no basis for determining the nonexistence of the former.
The strongest counterargument is that the cost of additional litigation to obtain the certificate can erode the value of the succeeded right. If a new trial is required for every succession, execution can be evaded by a mere transfer of the right. This disadvantage is not erased. Yet the conclusion stands that, where the prior judgment cannot be executed without satisfying the statutory requirements, the channel of this relief closes. This answer is limited by the fact that the lack of a certificate cannot be determined as the nonexistence of the substantive succession. So long as the lack of documents is not converted into a denial of the right, the problem of cost raised by the counterargument cannot change the conditions under which the channel closes.
In the synthetic scene, Creditor B is making a demand upon C, a member of the organization. Whether this relationship is one of mere economic relation, or whether it falls within the statutory scope of effect and possesses a ground for succession, cannot be determined from the scene alone. The records—the parties to the prior action, the reference time, the succession materials, the execution clause, and the relationship between the organization and its members—must be confirmed before the requirements can be compared. So long as the object and timing of the succession or the identity of the parties remains unconfirmed, whether this door is blocked or open must remain undetermined. Yet if the relationship of being a member of the organization is confirmed as an independent individual right, the conclusion that the organization's judgment binds as a matter of course changes. So long as that condition does not change, the scene merely defers the determination and cannot overturn the preceding conclusion.
The conclusion permitted by this section is narrow. In cases of mere economic relation, where there is no statutory scope of effect or ground for succession so that the prior judgment cannot be executed against that person, if even one of the statutory requirements is not satisfied, the channel of this relief closes. Here, closure does not mean that the nonexistence of the substantive succession has been determined. To deny the succession solely on the basis of a lacking certificate would collapse this distinction, and it runs in the direction of overturning a confirmed conclusion. Conversely, mixing matters halted at the threshold with matters in which the right has been denied likewise makes this distinction disappear.
6.3The Boundary That Remains When There Is No Data
The questions that now remain are whether execution by succession is blocked forever if the certificate is lacking, and where the boundary of what cannot be determined for want of materials lies. In the scene where Creditor B, holding a judgment against Organization A, demands that C, a member of the organization, perform the same obligation, it asks what the nature is of the place that remains when the proof has not been filled in. A determination halted for want of documents is not the same as a pronouncement that the right itself does not exist.
Article 33 of the Civil Execution Act provides: "Article 33 (Action for Issuance of Execution Clause) Where the required proof under Article 30 (2) and Article 31 cannot be furnished, the creditor may file an action demanding issuance of an execution clause with the court of first instance." Here, 'where proof cannot be furnished' refers to the state in which the proof required by Article 30 (2) and Article 31 cannot be supplied by documents; 'the creditor' is the person seeking an execution clause; and 'an action that may be filed with the court of first instance' opens a channel that undergoes separate examination. What this text addresses is only the manner of securing proof, not a conclusion as to whether the succeeded right actually exists.
The arrangement of this provision treats the lack of proof and the denial of the right at different stages. If the former is a state in which the materials of determination fall short, the latter is a state in which the determination itself has been rendered, and between the two lies the place where proof is contested through litigation. Since the action for issuance of an execution clause means the channel for contesting, through litigation, the proof required for an execution clause, the mere fact that this channel stands open does not mean that the substantive succession has already been denied. A matter whose determination has halted for lack of a certificate is left as undetermined; by contrast, the fact that, where statutory proof cannot be furnished, an action for issuance of an execution clause is separately provided is read without regard to the fate of the right.
The counterargument that the cost of additional litigation can erode the value of the succeeded right targets a real loss. It is the concern that if a new trial is required on each succession, execution can be evaded by a mere transfer of the right, and that the procedural costs borne by Creditor B may swallow up a right that is not small. Even so, the lack of a certificate cannot be determined as the nonexistence of the substantive succession. The fact that a separate channel is provided where statutory proof cannot be furnished, though it cannot lighten the weight of cost, prevents the deficiency of documents from being rewritten as a denial of the right.
In the synthetic scene, the relationship between Creditor B, holding a judgment against Organization A, and C, a member of the organization, is reached only through the records of the parties to the prior action, the reference time, the succession materials, the execution clause, and the relationship between the organization and its members. If the object or the timing of the succession, or the identity of the parties between B and C, is not confirmed in these records, that matter remains not as an impossibility but as materials of determination that have not been specified. If the relationship of being a member of the organization is confirmed as an independent individual right, it becomes the condition for revising the conclusion that the organization's judgment binds as a matter of course; but on the present scene alone, that shift cannot be determined.
What this section permits is the judgment that reads the place left empty by proof not as a denial of the right but places it at the boundary of the undetermined, and it goes no further than the confirmation that, where statutory proof cannot be furnished, the action for issuance of an execution clause is in place. Conversely, to determine from the lack of a certificate alone that there is no substantive succession, or to convert at once an insufficiency of materials into an inability to execute, is a conclusion this section does not establish. The undetermined is not a state in which the door of relief is closed, but a state in which room remains for the materials of determination to be filled in, and it is read separately from the results of actual payment, delivery, or recovery.
6.4The Records Needed for Determination
And to tell whether that blockage is temporary or permanent, what must be taken as the record? When Creditor B seeks to rely on the effect of the prior judgment, the question treated here is how to proceed when a certificate supporting the fact of succession is not at hand. One must first discern whether the moment the documents fall short is itself the moment the right does not exist, or merely the moment the materials of determination fall short.
The statutory text corresponding to this question leaves the door to that distinction open. Article 33 of the Civil Execution Act provides: "Where the required proof under Article 30 (2) and Article 31 cannot be furnished, the creditor may file an action demanding issuance of an execution clause with the court of first instance." The subject spoken of here is the creditor, the act is the filing of an action demanding issuance of an execution clause, and the condition is when the required proof demanded by the preceding provisions cannot be furnished. This text, while regarding a lack of proof as a state that cannot be covered by documents alone, separately leaves open a path by which the creditor may proceed in that state. What this section treats is the existence and character of this channel; it does not lay out the content of the proof required by other provisions.
The channel meant by this statutory text is called the action for issuance of an execution clause. The action for issuance of an execution clause means the channel for contesting, through litigation, the proof required for an execution clause. This definition meshes with the standard for stage determination. To decide to determine the stage solely by the materials recorded regarding the parties to the prior action, the reference time, the succession materials, the execution clause, and the relationship between the organization and its members, means that the substance will not be guessed from the bulk of documents assembled. The stage determination is made only upon the records as fixed, and absent records are not filled in by inference. In other words, the state of not having furnished proof and the state of having determined that the succession itself does not exist are placed at different stages of determination. The former means a deficiency of records, the latter a lack of the right; and if the two are handled at once, matters halted at the threshold and matters in which the right has been denied become intermingled.
Nevertheless, the point that the cost of additional litigation can erode the value of the succeeded right remains to the end. If a new lawsuit must be brought whenever the documents supporting the fact of succession fall short, that cost may already have been deducted from the right that passed by succession. The concern that the effort spent obtaining an execution clause may exceed the share sought to be recovered through execution targets a real inconvenience. By the standard set out above, what is not left in the record is handled merely as not left in the record, and is not rewritten as a determination that there was no succession. The way to reduce the loss pointed out by the counterargument is not to lower the standard of determination, but to make clear what is required at which stage.
Returning to this scene, only the facts falling within the scope of this section are compared. Creditor B holds a judgment against Organization A and demands the same obligation of C, a member of the organization. What is confirmed in this scene is Organization A as party to the prior action, the reference time for execution, the presence or absence of succession materials, the state of the execution clause, and the materials recorded regarding the relationship between the organization and its members. For Creditor B to continue that demand, the present stage must be determined by these five kinds of records. This scene, however, fixes no year, amount, or commencement date, and contains neither the service in an actual case nor the results of performance. Accordingly, what can be determined here is only which records are taken as the standard, and how those records have actually been filled in remains undetermined.
The conclusion permitted by this section is that a state of lacking a certificate is not, in itself, a state in which execution by succession is permanently blocked. If proof falls short, the channel known as the action for issuance of an execution clause remains, and through that channel the required proof may be contested. The impermissible conclusion is to deny the substantive succession solely because the documents are absent, or, conversely, to disregard the absence of documents and permit execution at once. The standard of not filling in absent records by conjecture bars both.
6.5Circumstances That Change the Decision
From the preceding stage of analysis, only one conclusion is carried forward: an enforcement clause against a successor in title requires manifestness of the succession or proof by means of a certificate. Creditor B holds a judgment against Organization A, and now demands that member C of the organization perform the same obligation. At the point where the matter stopped because the documents fell short, the question that remains is whether that stoppage also means a denial of the right.
The text of that provision itself leaves open a route for the case in which the necessary proof has not been furnished. Article 33 of the Civil Execution Act provides: "Where the necessary proof cannot be furnished pursuant to Article 30 paragraph (2) and Article 31, the creditor may file an action seeking issuance of an enforcement clause with the court of first instance." Here the party is the creditor seeking issuance of the enforcement clause, the act is the filing of an action with the court of first instance, and the condition is the case in which the necessary proof cannot be furnished pursuant to Article 30 paragraph (2) and Article 31. What this text addresses is the question of the possibility of proof, not the existence or non-existence of the substantive right of succession.
These two determinations rest at different stages and must therefore be set up separately. What is handled at the stage of execution against a successor in title is whether one falls within the statutory personal scope to which the effect of the preceding judgment extends, and whether one furnishes the proof necessary for execution against a successor in title or contests the matter through an action for issuance. The case in which there is only an economic connection and, for lack of a basis within the scope of statutory effect or a ground of succession, the preceding judgment cannot be executed against that person, is a ground of exclusion. Where the proof has not been furnished, the matter is different. A route remains for contesting in a lawsuit the proof required for the enforcement clause, namely an action for issuance of an enforcement clause; the deficiency in the documents is therefore not transcribed as a settled denial of the right.
The strongest counterargument is aimed at the reality of costs. If a new lawsuit is required at every succession, the debtor can avoid execution merely by transferring the right, while conversely the creditor must bear the burden of the cost of additional lawsuits eroding the value of the succeeded right. This loss is not erased. Even so, the lack of a certificate cannot be made into a settled finding of the non-existence of substantive succession. The moment the documentary threshold is instead set by a substantive determination, the distinction itself between a matter stopped at the threshold and a matter in which the right is denied collapses.
The contrary fact assumed in this scene is a test that changes one of the conditions of the stage determination. If the relationship of being a member of the organization is confirmed as an independent individual right, the conclusion of the automatic binding effect of the organization's judgment must be revised. Once this change is confirmed, the existing determinations of exclusion and futility are discarded and the matter is determined afresh from the stage onward. However, among the parties to the prior lawsuit, the reference time point, the materials of succession, the enforcement clause, and the relationship between the organization and its members, the scope in which the object or time of the succession, or the identity of the parties, has not been confirmed remains undetermined. A lack of materials does not immediately mean that no relief is available.
Accordingly, the mere fact that the certificate is lacking does not mean that execution by reason of succession is forever blocked. Even where the statutory proof cannot be furnished, a separate route exists in the form of an action for issuance of an enforcement clause; the deficient proof therefore remains a matter to be remedied by contesting it in a lawsuit. However, the fact that this route is open does not mean that actual payment, delivery, or recovery has been accomplished, and at the stage of the personal connection between the effect of the judgment and execution against a successor in title, the records of the parties to the prior lawsuit, the reference time point, the materials of succession, and the enforcement clause must still be compared against one another. So long as the fact of the threshold and the fact of the denial of the right are not substituted for one another, the settled, narrow conclusion stands.
6.6The Strongest Counterargument and the Answer
The question whether execution arising from succession is forever blocked when the certificate is lacking has already deepened. The preceding stage left only the point that the lack of a certificate is merely a scene in which execution stops. What is now at issue is what character that stoppage has, and whether the inconvenience of having to go through an additional lawsuit may erase the substance of the right itself. At the position where Creditor B, holding a judgment against Organization A, demands that member C of the organization perform the same obligation, what remains is to draw the line between whether the claim was refused solely on the ground of documentary proof and whether it was settled that the succession itself does not exist.
Where the statutory proof cannot be furnished, there is a separate route. The text providing for that route reads as follows. "Article 33 (Action for Issuance of an Enforcement Clause) Where the necessary proof cannot be furnished pursuant to Article 30 paragraph (2) and Article 31, the creditor may file an action seeking issuance of an enforcement clause with the court of first instance" (Article 33 of the Civil Execution Act). This text sets the party as the creditor, the act as the filing of an action seeking issuance of an enforcement clause, and the condition as the case in which the necessary proof cannot be furnished. The court is the court of first instance, and the difficulty of proof under Article 30 paragraph (2) and Article 31 is the occasion that opens the door.
Between this text and the conclusion of this section lies a one-step distinction. An action for issuance of an enforcement clause means a route for contesting in a lawsuit the proof necessary for an enforcement clause, and this is a procedure concerning the method of securing proof. Yet to read the circumstance of having failed to furnish the proof in that procedure immediately as the non-existence of substantive succession is to identify the stoppage noted in the preceding stage with the right. That proof may be contested by action means only that a legal route is open; it neither confirms the result of actual payment, delivery, or recovery, nor does the circumstance that the route is closed deny the substance of the succession. Accordingly, at the stage of examining Creditor B's claim, the deficiency of proof in the documents and the non-existence of the right of succession are not two determinations that can be placed side by side; they belong to different thresholds.
The strongest counterargument is aimed here. If a new lawsuit is required at every succession, the debtor can fabricate nothing but a transfer of the right to postpone execution indefinitely, and the cost of the additional lawsuits thereby incurred slowly erodes the value of the succeeded right. This inconvenience is not light. For Creditor B, the position secured by judgment returns as a loss in which practical benefit is forfeited through repeated procedures, and successor-in-title C must bear cost and delay in the process of proving his or her own right by action. The risk of cost and delay identified by the counterargument is left standing, and to add to the defect of documents, under the pretense of resolving that very risk, the further effect of denying the right of succession is to reverse the character of the threshold. So long as the route of an action for issuance of an enforcement clause is the place where proof is contested, the difficulty of proof and the existence or non-existence of the right are each determined at different thresholds.
The fact confirmed in this scene is only that Creditor B, holding a judgment against Organization A, demands that member C of the organization perform the same obligation. The items of the record—parties to the prior lawsuit, reference time point, materials of succession, enforcement clause, and relationship between the organization and its members—have been set, but the actual content to be filled into those items is not yet fixed. From this scene, only the relationship of C being a member of Organization A emerges; what personal connection B's judgment has with C, what the object and time of the succession are, and to what extent the necessary proof materials have been furnished, remain unverified. If the relationship of being a member of the organization is confirmed as an independent individual right, the conclusion of the automatic binding effect of the organization's judgment changes; but without that confirmation at present, only the existence of the legal route is settled.
The permissible conclusion is narrow. The mere circumstance that the certificate is lacking cannot settle the non-existence of the substance of the succession, and it is likewise confirmed that where the statutory proof cannot be furnished, a separate route remains in the form of an action for issuance of an enforcement clause. What is impermissible is to restate the opening of that route as the result of actual recovery, and to prejudge the non-existence of the right on the ground that the cost and delay of additional lawsuits are great. Whether the preceding judgment can be executed against that person turns on whether he or she falls within the statutory personal scope to which the effect extends and whether the proof necessary for execution against a successor in title is furnished or contested through an action for issuance; items not confirmed remain undetermined.
6.7The Link to the Application and the Dispositive Part
What the preceding stage left is the single line that the gate of execution is not forever closed by a mere blank in the certificate. Creditor B holds a judgment against Organization A, and now intends to demand that member C of the organization perform the same obligation. How the performance now demanded connects with what has already been secured in the dispositive part of the preceding judgment is the question this material addresses.
The text of the provision is plain. Article 33 of the Civil Execution Act provides: "Where the necessary proof cannot be furnished pursuant to Article 30 paragraph (2) and Article 31, the creditor may file an action seeking issuance of an enforcement clause with the court of first instance." This Article merely indicates that an action for issuance of an enforcement clause is a separate route; it does not settle other issues.
The point at which this text and the conclusion of this section mesh is the scope of the performance. If the performance demanded at the personal connection between the effect of the judgment and execution against a successor in title falls within the prayer for relief, the court adjudicates it in the dispositive part. But a performance not applied for remains outside the prayer for relief and therefore cannot be added to the dispositive part. Why this distinction between what was demanded and what was adjudicated is necessary is because the secured dispositive part is at once the sole material of the determination. The moment an unapplied-for performance is added to the dispositive part, the standard of the determination itself is shaken.
The strongest counterargument targets cost. The cost of a new lawsuit may exceed the value of the succeeded right, and the result is that execution is avoided merely by transferring the right. This loss is real and is not erased. Even so, the answer is the same. The blank in the documents is not the conclusion of a substantive determination but an incomplete verification, and converting that incompleteness into a denial of the right runs counter to the settled separation.
The facts confirmed in the synthetic scene are narrow. If this demand falls within the prayer for relief of the preceding judgment, it can be adjudicated in the dispositive part; if it lies outside, it cannot be added to the dispositive part. However, since none of the parties to the prior lawsuit, the reference time point, the materials of succession, the enforcement clause, and the relationship between the organization and its members has been confirmed in the records, the connection of the effect to C is not itself established by this scene alone. Whether the relationship of membership is confirmed as an independent individual right likewise remains unverified.
Accordingly, the judgment this material permits is the narrow distinction of first looking at whether the demanded performance lies within the prayer for relief; if it does, adjudicating it in the dispositive part, and if not, not adding it to the dispositive part. What is impermissible is to read the deficiency of documents as a denial of the right, or to add an unapplied-for performance to the dispositive part.
6.8The Scope This Section Undertakes
On the premise set out that an enforcement clause against a successor in title requires manifestness of the succession or proof by means of a certificate, the present question asks whether a matter stopped at the threshold can be separated from a matter of denial of the right.
The text of the route that opens where the statutory proof cannot be furnished is as follows. Article 33 of the Civil Execution Act provides: "Where the necessary proof cannot be furnished pursuant to Article 30 paragraph (2) and Article 31, the creditor may file an action seeking issuance of an enforcement clause with the court of first instance." The party indicated by this text is the creditor, the act is the filing of an action seeking issuance of an enforcement clause, and the condition is the case in which the necessary proof cannot be furnished pursuant to Article 30 paragraph (2) and Article 31. The other requirements of Article 33 are outside the scope of the present question.
This text and the preceding conclusion are connected by a single distinction. The condition of being unable to furnish the statutory proof points only to a situation in which the means of proof cannot reach, and does not mean a settled determination that the substantive legal relationship of succession does not exist. Thus this section determines the insufficiency at the threshold and the denial of the right separately, leaving insufficiency as insufficiency and denial as denial. The conclusion that, where the statutory proof cannot be furnished, a separate route exists in the form of an action for issuance of an enforcement clause is drawn from this.
Yet separately filing an action seeking issuance of an enforcement clause requires cost and time, and if a new trial must be gone through at each succession, room remains for avoiding execution merely by transferring the right. The counterargument that the cost of additional lawsuits may erode the value of the succeeded right aims at this point. Even so, since the lack of a certificate cannot be settled as the non-existence of substantive succession, the conclusion is not shaken.
The materials of determination in this scene are the parties to the prior lawsuit, the reference time point, the materials of succession, the enforcement clause, and the relationship between the organization and its members, and whether the actual records have been collected remains undetermined.
Accordingly, what this section permits is the determination of viewing a matter stopped at the threshold as an insufficiency at the threshold and leaving a separate route open, and what it does not permit is the determination of establishing that insufficiency as the non-existence of substantive succession. An action for issuance of an enforcement clause means only a route for contesting in a lawsuit the proof necessary for an enforcement clause; the fact that its door is open must not be read as being converted into the result of actual payment, delivery, or recovery.
6.9Application of the Text of the Provisions and the Holdings of Precedents
The question whether execution arising from succession is forever blocked when the certificate is lacking is open. This question does not place the circumstance that proof has not been put into the documents and the judgment that the right itself does not exist in the same position. In the scene where Creditor B, holding a judgment against Organization A, demands that member C of the organization perform the same obligation, what must be traced back is whose and what connection is required.
The source provision, Article 33 of the Civil Execution Act, provides: "Article 33 (Action for Issuance of an Enforcement Clause) Where the necessary proof cannot be furnished pursuant to Article 30 paragraph (2) and Article 31, the creditor may file an action seeking issuance of an enforcement clause with the court of first instance." This text takes as its subject the creditor who cannot furnish the necessary proof. The act is the filing of an action seeking issuance of an enforcement clause, and the condition is the case in which the necessary proof cannot be furnished pursuant to Article 30 paragraph (2) and Article 31. The scope of the text handled in this section is precisely this Article 33.
This text and the conclusion of this section follow directly from one another. Once it is confirmed that, where the statutory proof cannot be furnished, a separate route exists in the form of an action for issuance of an enforcement clause, then in the determination asking about the personal connection between the effect of the judgment and execution against a successor in title as well, only the confirmed text may be used as the basis. This route deals with the question of furnishing proof and is distinguished from the stage that settles the existence or non-existence of the substantive right. Unless the two stages are separated, the defect of documents will be read across as a defect of the right.
What most strongly resists that distinction is the loss that the cost of additional lawsuits may erode the value of the succeeded right. Requiring a new trial at each succession makes it possible to avoid execution merely by transferring the right, so the trouble borne by the creditor and the delay in execution become a real burden. So long as the state in which proof has not been furnished in documents cannot be moved across to a settled determination that substantive succession does not exist, a matter stopped at the threshold is separated from a matter of denial of the right.
In the scene where Creditor B, holding a judgment against Organization A, demands that member C of the organization perform the same obligation, what this section must hold fast to is the basis for determining the personal connection. When determining the personal connection between the effect of this judgment and execution against a successor in title, the only thing that may be used is the text of the source provision itself, and the extended reasons for the judgment are not drawn in. Among the parties to the prior lawsuit, the reference time point, the materials of succession, the enforcement clause, and the relationship between the organization and its members, the parts in which the object or time of the succession, or the identity of the parties, has not been confirmed remain undetermined. Unconfirmed materials are not converted into a reading of the non-existence of substantive succession.
What is permitted in this section is the determination that, even where proof cannot be furnished, the route of an action seeking issuance of an enforcement clause remains open. What is not permitted is the determination of establishing such a lack of proof as a denial of the right itself, or of widening the basis of determination with text from outside this Article. The state in which materials are lacking is undetermined and does not immediately mean that no relief is available.
6.10Fine Distinctions Within the Stage
Before the question of whether execution based on succession is forever blocked when a certificate of proof is lacking, the question handled here is what remains to be separately determined within the personal nexus between the effect of a judgment and execution by succession. The preceding stage held that a successor execution clause requires the evidentness of succession or proof by means of a certificate, and dealt with the state in which that requirement is not met. This section organizes the strata of conditions to be subdivided anew within that requirement.
This text points at once to the condition of being unable to give proof, the party being the creditor, and the act being a lawsuit demanding that an execution clause be issued. The lawsuit for issuance of an execution clause is a channel for contesting, through litigation, the proof required for an execution clause, and this section rests solely on the text of that channel.
The determination that, where legal proof cannot be given, there is a separate channel in the form of a lawsuit for issuance of an execution clause accords with the ground that one must distinguish the state of having stopped at the threshold of documents from the state in which the right itself is denied. The condition set by the preceding paragraph, namely the words 'where proof cannot be given,' point only to a state in which the means of proof are not in place; they are not words that confirm the nonexistence of a transfer of the substantive right. The author treats this distinction as a detailed subdivision within the stage, and that subdivision is limited to the stated conditions of cases in which it operates, cases in which it is blocked, and cases that remain undetermined.
The strongest counterargument is aimed at the point that the cost of an additional lawsuit may erode the value of the succeeded right. The criticism that, if a new trial is demanded at every succession, a mere transfer of the right would suffice to evade execution comes from the same direction. While acknowledging this loss and inconvenience, the author's conclusion does not change. For the lack of a certificate of proof cannot be confirmed as the nonexistence of substantive succession. The point that, where legal proof cannot be given, a separate channel in the form of a lawsuit for issuance of an execution clause remains open is the minimal condition of distinction for not reading deficient proof as a denial of the substantive right.
The materials for judgment in this scene are the parties to the prior lawsuit, the reference point in time, the succession documents, the execution clause, and the relationship between the organization and its members. To the extent that the object and time of succession or the identity of the parties is not confirmed, the matter remains undetermined. Where there is only an economic connection and no scope of legal effect or ground of succession, so that the earlier judgment cannot be executed against that person — in other words, where the case falls within the blocked category — execution does not open.
The conclusion permitted by this section is narrow. Only where one falls within the legal personal scope to which the effect extends and one either possesses the proof required for execution by succession or contests it through the lawsuit for issuance can that channel be taken as one condition of judgment, and nothing has been decided as to results beyond the stated conditions. A determination that succession itself did not occur merely because documents are absent is not permitted; conversely, a determination that execution opens merely because documents are deficient is likewise not within the scope of this section.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
Up to the preceding stage it was confirmed that, even when a certificate of proof is lacking, that deficiency does not itself deny the succession. Creditor B holds a judgment against Organization A and demands that Member C of the organization perform the same obligation. In this scene, the personal nexus between B and C is distinguished by two paths: the effect of the judgment and execution by succession. Whether execution based on succession is forever blocked when a certificate of proof is lacking, or whether opening, closing, and unverified states are each bound to different conditions, is the question handled here.
The text corresponding to this question is Article 33 of the Civil Execution Act. In confirming a deficiency of proof, this text does not take that fact as its endpoint but leaves open a separate channel of lawsuit.
Accordingly, deficient proof and the final blocking of execution must not be read as one and the same. The author divides into the opening condition the case in which one falls within the legal personal scope to which the effect of the judgment extends and either possesses the proof required for execution by succession or contests it through the lawsuit for issuance of an execution clause, and into the blocking condition the case in which there is only an economic connection and no scope of legal effect or ground of succession, so that the earlier judgment cannot be executed against that person. The former is a matter of the channel; the latter is a matter of the personal ground. The conclusion that, where legal proof cannot be given, there is a separate channel in the form of a lawsuit for issuance of an execution clause is what separates the two stages, and the lawsuit for issuance of an execution clause means a channel for contesting, through litigation, the proof required for an execution clause.
The strongest counterargument here is cost. The cost of an additional lawsuit may erode the value of the succeeded right. If a new trial is demanded at every succession, the side that evades execution by a mere transfer of the right gains the advantage, and in the end the share obtained by contesting and winning is swallowed up by the effort spent on the litigation — so the complaint runs. This loss is not erased. If the fact of a deficiency of documents alone were to deny the transfer of the right definitively, the side that failed to obtain proof would be treated the same as the side without substance, and the established distinction would collapse.
Contrasting the relations among A, B, and C in the scene, the facts used for judgment are none other than the parties to the prior lawsuit, the reference point in time, the succession documents, the execution clause, and the relationship between the organization and its members. For Creditor B's demand to open, C must fall within the legal personal scope to which the effect extends and must either possess the proof required for execution by succession or contest it through the lawsuit for issuance. The mere fact of an economic connection does not lead to the conclusion that the earlier judgment extends to C or can be executed. Meanwhile, matters in which the object or time of succession, or the identity of the parties, is not confirmed remain undetermined.
What this section permits is a conditional distinction. The lack of a certificate of proof does not itself confirm a denial of the right, and a mere economic connection cannot extend the effect of the earlier judgment beyond the parties. In the personal nexus between the effect of the judgment and execution by succession, effectuation, blocking, and undetermined states are each bound to the foregoing conditions, and the fact that there are no materials remains not as unavailability of relief but as not confirmed.
6.12이 권의 결론과 남는 물음
The preceding section organized the matter thus: it operates where one falls within the legal personal scope to which the effect extends and either possesses the proof required for execution by succession or contests it through the lawsuit for issuance; it is blocked where there is only an economic connection and no scope of legal effect or ground of succession, so that the earlier judgment cannot be executed against that person; and it remains undetermined where the object or time of succession, or the identity of the parties, is not confirmed. Taking up that distinction, this section asks whether execution based on succession is forever blocked when a certificate of proof is lacking.
The text answering this question enumerates the requirements for the institution of a lawsuit for issuance of an execution clause. In this text the party is the creditor, the act is the filing of a lawsuit demanding that an execution clause be issued, and the condition is the case where the proof required under Article 30(2) and Article 31 cannot be given. The text designates the court of first instance as the court with jurisdiction, and it does not carry the import that the inability to give proof means the extinction of the claim.
Herein lies the reason why the fact that proof cannot be given and the conclusion that no claim can be made are placed at different stages. The foregoing text presupposes the case where the creditor cannot satisfy the requirements with ordinary written documents and certificates, and separately provides the form of lawsuit that may be filed at that time. The conclusion the author draws from this text is that, where legal proof cannot be given, there is a separate channel in the form of a lawsuit for issuance of an execution clause. Since the procedural channel for dealing with a lack of documentary proof and the determination that confirms the existence or nonexistence of the substantive right of succession have different objects, the former inability must not be reduced to the latter denial.
The strongest counterargument is aimed at the price that separate channel exacts. That is, the cost of an additional lawsuit may erode the value of the succeeded right. This counterargument is weighty in that the effort and delay entailed in the creditor's filing a new lawsuit and undergoing examination again may leave no actual execution benefit gained by the succession. The burden also remains that, if a new trial is demanded at every succession, a mere transfer of the right suffices to evade execution. Even so, the answer that the lack of a certificate of proof cannot be confirmed as the nonexistence of substantive succession is maintained.
Returning to the synthetic scene, in this matter where Creditor B seeks execution against Member C, only the aspect of the presence or absence of proof materials falls within the scope of this section. The parties to the prior lawsuit, the reference point in time, the succession documents, the execution clause, and the relationship between the organization and its members become the materials of judgment, and the content of the actual records has not been confirmed. So long as the object or time of succession, or the identity of the parties, is not confirmed, whether in this matter the lack of proof means a substantive denial remains undetermined.
The conclusion permitted by this section is that a separate channel of lawsuit remains for the creditor who failed to obtain proof. By contrast, to assert outright that, since there is no certificate of proof, succession itself did not occur, or to hold that if that lawsuit is filed execution is certain to be accomplished, is a direction this section does not confirm. So long as the issue of proof and the issue of substantive succession are handled separately, the threshold of documents is not the endpoint of the right. What is the door for recontesting a claim under a final and conclusive judgment?
Statutes referred to
Questions left open
- How much of the defense of a successor who could not participate should remain?
- By what materials shall succession of rights and succession of obligations be distinguished?
- At what stage is notice required to prevent the expansion of personal effect?