Summary
In execution based on a judgment, this chapter distinguishes the requirement of an authenticated copy bearing an execution clause from mere possession of a copy.
2.1The Standard by Which the Path Opens
Knowing the content and presenting a document valid to the execution agency are two different things. A final judgment that has become final and conclusive and a final judgment with a declaration of provisional execution are distinguished as the bases of execution. Creditor A obtained a winning judgment, but did not distinguish whether it had been served on debtor B and whether an enforcement clause is needed. What he must produce before the execution agency remains a question separate from knowing the content of the judgment. Are a copy of the judgment and the document to be executed the same?
Article 28 of the Civil Execution Act requires, as a condition for the commencement of compulsory execution, "a certified copy of a judgment with an enforcement clause." This language points to three things. First, the actor is the execution creditor in possession of the certified copy of the judgment; the act is the commencement of compulsory execution; and the condition is the fact that an enforcement clause has been granted on that certified copy. The provision requires not a piece of paper printed with the content of the judgment, what is commonly called a copy of the judgment, but a certified copy of a particular form bearing an enforcement clause.
The point at which this ground and this conclusion connect is the requirement of form. An enforceable certified copy means a certified copy of a judgment with an enforcement clause, and this is a concept distinct from any medium on which the content of the judgment can be read. Where the finality or provisional execution, certified copy, enforcement clause, proof of conditions, and service fitting the type of title are in place, the entrance to this remedy opens. Possession of a copy and submission of the certified copy stand on either side of this standard, and if that distinction is collapsed, the very gateway to the commencement of execution collapses.
Document form can delay the enforcement of a substantive victory. The complaint that formal paperwork can once again delay a right already confirmed is substantial. Requiring separate paperwork of a creditor who already holds a right fixed by judgment imposes added cost and time, and meanwhile the risk that assets will slip away remains exactly as it is. Even so, an internet copy of the judgment cannot be treated as an enforceable certified copy. However accurately a copy may capture the content of the judgment, it cannot substitute for the formal qualification of a certified copy bearing an enforcement clause, and this inconvenience is accepted as one that cannot be removed.
This fact alone does not confirm whether service occurred or whether an enforcement clause was granted. Since the status of service and finality is not left in the record, it cannot be determined from this scene alone whether the conditions for commencing compulsory execution are met. Where an ordinary judgment is transformed into a special title such as a performance recommendation, the same enforcement clause rule is not applied as is. Accordingly, what this section confirms is only the conditional distinction that the entrance opens when documents fitting the type of title are assembled, and not the fact that any particular document is already prepared.
What this section permits is to separate possession of a copy of the judgment from submission of an enforceable certified copy; what it does not permit is to treat a copy as a certified copy. The definition of an enforceable certified copy as a certified copy of a judgment with an enforcement clause is the baseline of this distinction.
2.2The Conditions That Block Relief
Standing on this distinction, A now runs into the wall of actual procedure. This question concerns not the presence or absence of content but the document's form and effect. What conditions block the commencement of compulsory execution? The answer is given below.
Article 28 of the Civil Execution Act provides: "Compulsory execution may be conducted only where there is a certified copy of a judgment with an enforcement clause (hereinafter referred to as an 'enforceable certified copy')." (Article 28 of the Civil Execution Act) In this language, the actor is the agency handling the application for and the carrying out of compulsory execution, and the act is the commencement of compulsory execution. The condition is presenting a certified copy of a judgment to which an enforcement clause has been granted. Accordingly, merely knowing the content of the judgment or possessing a copy of the judgment does not satisfy this condition. Issues under other provisions are not brought within the scope of this question.
The path connecting this language and the conclusion of this section is short. A document possessing enforceability and ownership of a copy are requirements of different stages. An enforceable certified copy means a certified copy of a judgment with an enforcement clause, and this definition makes the granting of an enforcement clause a requirement of the document. Where there is only a non-final judgment without a declaration of provisional execution, or where the necessary enforcement clause, proof of conditions, and service are not in place, if any one of the statutory requirements is unmet, the route to relief closes. The reason for separating a non-final judgment from a judgment with provisional execution and the reason for separating a copy from a certified copy lie in the same context. Both are different judgment stages for evaluating the basis of execution.
Still, the counterargument that document form can delay the enforcement of a substantive victory is not a light one. If a creditor who has already obtained a winning judgment and confirmed his right must wait because of the formal procedures of the certified copy and the enforcement clause, that delay may return as real loss. There arise the inconvenience and cost that a confirmed right cannot operate at the scene of execution. Yet even without concealing the disadvantage at which this counterargument is aimed, the conclusion stands. If the formal requirements are relaxed, there arises the risk that the standard of execution is shaken, and this produces a greater confusion than the delay cost of the counterargument.
The facts and conditions set in this scene may be compared. A obtained a winning judgment, and did not distinguish whether it had been served on B and whether an enforcement clause was needed. This fact alone cannot determine whether an enforceable certified copy was presented. Whether there was service, and whether it is a final and conclusive judgment or a judgment with a declaration of provisional execution, has not been confirmed either. Accordingly, whether the enforcement clause, the certificate of proof of conditions, and the certificate of service are in place remains undetermined in this scene. There is, however, one thing that is settled. It is that the mere fact that A possesses a copy of the judgment does not mean that the requirements for commencing compulsory execution have been met.
To set out the boundary between the conclusions this section permits and those it does not: the route to relief opens only where a certified copy of a judgment with an enforcement clause is assembled together with an indication of finality or provisional execution, a certificate of proof of conditions, and a certificate of service. If any one of them is missing, the route closes. Yet insufficient material is not the same as inability to obtain relief, and unconfirmed items remain undetermined.
2.3The Boundary That Remains When There Is No Data
Accepting that in the previous stage a final judgment that has become final and conclusive and a final judgment with a declaration of provisional execution were distinguished as bases of execution, the remaining questions are whether a copy of the judgment and the document to be executed are the same thing, and where to place the boundary that cannot be determined for lack of material.
The documents required in execution based on a judgment are separately specified. Article 28(1) of the Civil Execution Act declares: "Compulsory execution may be conducted only where there is a certified copy of a judgment with an enforcement clause (hereinafter referred to as an 'enforceable certified copy')." (Article 28 of the Civil Execution Act) What this language requires is a certified copy of a judgment with an enforcement clause, where the enforcement clause means a notation acknowledging enforceability and the certified copy of the judgment means a certified copy issued by the court. Accordingly, the object is not just any document containing the content of the judgment, but is limited to a certified copy of a judgment equipped with an enforcement clause.
To connect that language with the conclusion of this section, possession of a copy and presentation of an enforceable certified copy become separate judgment stages. Reading a copy of the judgment and knowing its content goes no further than knowing the scope of the right, whereas presenting a certified copy possessing enforceability is a requirement that enables the execution agency to commence compulsory execution on the basis of that document. If the two stages are merged, the confirmation of the judgment's content and the conditions for commencing execution become entangled, and one reaches the mistaken conclusion that execution is possible on a copy alone. Where the type of title or the status of service or finality is not confirmed, matters for which the material of judgment is not specified are left undetermined, distinct from impossibility.
That formal paperwork can once again delay a right already confirmed is the heart of the counterargument. For creditor A, who has obtained a winning judgment, document form can delay the enforcement of a substantive victory, and he feels loss and inconvenience and comes to regard the very structure by which documentary requirements are placed again before a confirmed right as problematic. A confirmed right and the document requirements for carrying that right into execution are different matters, and if the latter is relaxed, the very demand for a certified copy of a judgment with an enforcement clause collapses.
In the synthetic scene, the facts corresponding to this question are only that A obtained a winning judgment and that A did not distinguish whether service had occurred and whether an enforcement clause was needed. This fact alone cannot determine which of the certified copy of the judgment, the indication of finality or provisional execution, the enforcement clause, the certificate of proof of conditions, and the certificate of service is in place, whether service was made on B, or whether an enforceable certified copy has been issued. Since years, amounts, dates of commencement, or the time of finality of the judgment not present in the scene are not established, they cannot be supplied. Accordingly, the boundary that cannot be determined for lack of material is left undetermined as it is, and lack of material is not converted at once into inability to obtain relief.
The conclusion this section permits is to distinguish a copy of the judgment from an enforceable certified copy, and to leave matters whose type of title or status of service or finality is unconfirmed as undetermined, distinct from impossibility. Conversely, identifying a copy with a certified copy, declaring lack of material to be impossibility outright, or deeming the requirements for commencing execution satisfied while matters remain undetermined is not permitted.
2.4The Records Needed for Determination
On the premise that a final judgment that has become final and conclusive and a final judgment with a declaration of provisional execution are distinguished as bases of execution, the question whether a copy of the judgment and the document to be executed are the same remains. Whether one can say that the documents necessary for execution are in place on the mere basis that A knows the content of the winning judgment and can read the judgment is the first point that divides in this scene.
The language answering this question is found in Article 28 of the Civil Execution Act. "(1) Compulsory execution may be conducted only where there is a certified copy of a judgment with an enforcement clause (hereinafter referred to as an 'enforceable certified copy')." (Article 28 of the Civil Execution Act) As to the act of the actor who may conduct compulsory execution, this Article requires the document of a certified copy of a judgment with an enforcement clause. Here, a certified copy of the judgment means a document prepared by the court in certified-copy form containing the entries of the judgment, and the enforcement clause is a notation granted on that certified copy. Other paragraphs and other requirements of the Article are not separately explained in this language.
This language and the distinction of the preceding stage meet at the point that the stage of knowing the content of the judgment and the stage of being able to commence execution are different from each other. An enforceable certified copy means a certified copy of a judgment with an enforcement clause, and this definition does not bring within its scope a certified copy of a judgment without an enforcement clause or a copy of the judgment. Accordingly, in adjudicating the stage, the records set by the author are the certified copy of the judgment, the indication of finality or provisional execution, the enforcement clause, the certificate of proof of conditions, and the certificate of service, and the stage currently occupied is determined solely by the material recorded in these records. Circumstances not in these records are not taken as grounds for determining the stage, so the method of filling items absent from the records by conjecture is not placed in the position of the conclusion. The state of possessing a copy and the state of having presented an enforceable certified copy mean different material by this standard.
Then one must examine what inconvenience the counterargument that formal paperwork can once again delay a right already confirmed is aimed at. Where A has obtained a winning judgment and thereby confirmed the right to demand performance from debtor B in accordance with its content, if the procedure of assembling documents is prolonged, the time for enforcing that right is postponed, and meanwhile the debtor's asset condition may change. That a creditor holding a confirmed right must wait because of document form brings real loss and inconvenience. Yet the answer the author has set is that an internet copy of the judgment cannot be treated as an enforceable certified copy. To the extent that a copy is not treated as a certified copy, the requirement of document form is a distinction that separates knowing a right from presenting a document valid for execution, and this distinction does not disappear.
The facts that can be confirmed in this scene are only that A obtained a winning judgment and that A did not distinguish whether it was served on B and whether an enforcement clause was needed. Whether A's winning judgment is to be regarded as a final judgment that has become final and conclusive or as a final judgment with a declaration of provisional execution is not recorded in this scene, and whether service occurred has not been confirmed either. Whether A can present a certified copy of a judgment with an enforcement clause is likewise not settled by the facts of the scene. Since the type of title, whether it is an ordinary judgment, and the status of service and finality are unconfirmed, it cannot be adjudicated from this scene alone whether the stage of commencing compulsory execution has been reached. What is clear, however, is that the definition of an enforceable certified copy and the record index are settled, so that once the confirmed records are filled in, the stage can be determined by those records.
The conclusion permitted in this section is to separate the circumstance of knowing the content of the judgment from the circumstance of possessing an enforceable certified copy, to adjudicate the stage by the material recorded in the designated records, and not to fill absent records by conjecture. A conclusion treating a copy as an enforceable certified copy is not permitted by this section, and neither is a conclusion declaring execution immediately impossible on the ground that the records have not been confirmed. Items left undetermined are placed in the position of the undetermined.
2.5Circumstances That Change the Decision
After distinguishing a final judgment that has become final and conclusive from a final judgment with a declaration of provisional execution, this time the question is whether a copy of the judgment and the document to be executed are the same. This question concerns how document form handles the enforcement of a substantive victory.
Article 28 of the Civil Execution Act itself writes out the form of the document serving as the basis of compulsory execution. The provision requires "a certified copy of a judgment with an enforcement clause (hereinafter referred to as an 'enforceable certified copy')." The actor spoken of here is the creditor seeking to apply for compulsory execution, the act is the commencement of compulsory execution, and the condition is presenting a certified copy of a judgment with an enforcement clause. Reading a copy and knowing its content is a matter separate from this condition, and an enforceable certified copy means a certified copy of a judgment with an enforcement clause.
Contrasting this language with the synthetic scene, the adjudication diverges according to whether what A holds is an internet copy of the judgment or a certified copy with an enforcement clause. Since knowing the content of the judgment and possessing the documents necessary for execution are different judgment stages, possession of a copy alone is not regarded as satisfying the requirement of an enforceable certified copy. That is because if it is confirmed that the title has been transformed from an ordinary judgment into a special title such as a performance recommendation, the same enforcement clause rule is not applied as is.
The counterargument that document form can delay the enforcement of a substantive victory is powerful. If a creditor who has already obtained a winning judgment misses the moment of commencing compulsory execution because of formal requirements, the disadvantage arises of being unable to exercise in time the right confirmed by the judgment. The way to reduce the inconvenience of delaying an already confirmed right lies not in lowering the language but in obtaining the necessary certified copy and enforcement clause.
The facts confirmed in the synthetic scene extend only to A's having obtained a winning judgment and A's not having distinguished whether it was served on B and whether an enforcement clause was needed. Whether service occurred, whether the judgment is final and conclusive, and whether an enforcement clause has been granted are not settled in this scene and therefore remain undetermined. As the records for judgment, the certified copy of the judgment, the indication of finality or provisional execution, the enforcement clause, the certificate of proof of conditions, and the certificate of service must be confirmed. Accordingly, whether compulsory execution may be commenced cannot be determined from the scene alone.
The conclusion this section permits is narrow. It is to distinguish knowing the content of the judgment from presenting an enforceable certified copy, and not to regard the conditions for commencing compulsory execution as met on the strength of possessing a copy alone. Conversely, declaring that a creditor without an enforceable certified copy has no confirmed right, or holding that the same enforcement clause rule applies as is even to special titles, is not permitted by this section.
2.6The Strongest Counterargument and the Answer
On the premise of distinguishing, as the basis for execution, a final and conclusive judgment from a final judgment with a declaration of provisional execution, the form of documents may delay the enforcement of a substantive victory. Knowing the content of the judgment and preparing the document to be submitted before the execution agency stand at separate stages. Even after learning the content of a winning judgment, what remains is what must be produced in order to proceed to execution. This question is how to answer the counterargument that formal documents may delay once more a right already confirmed.
The statutory text itself prescribes the documents required in execution based on a judgment. Article 28 (1) of the Civil Execution Act requires that "compulsory execution be carried out upon a certified copy of a judgment with an enforcement clause" (Article 28 of the Civil Execution Act). In this wording, the subject is the creditor seeking to apply for execution, the act is the commencement of compulsory execution, and the condition is the presentation of a certified copy of a judgment to which an enforcement clause has been granted. The statutory text does not make a person who knows the content of the judgment, a person who has read the written judgment, or a person in possession of a copy of the judgment a requirement for execution. What is required is a certified copy of a judgment with an enforcement clause, the so-called enforceable certified copy. The provision does not address other issues such as the probative value of a copy or the scope of inspection of the written judgment.
The point where this wording meets the settled conclusion of this stage is the distinction between a copy and a certified copy. The author takes the view that a copy of a written judgment obtained from the internet cannot be treated as an enforceable certified copy. Inspecting the content of a judgment online or printing out and keeping a copy falls under knowing the fact and content of the victory. By contrast, an enforceable certified copy is a certified copy of a judgment to which an enforcement clause has been granted, and is the document requirement that enables the execution agency to commence compulsory execution. The former belongs to the realm of knowledge; the latter is a formal requirement of the stage of commencement of execution. If the two are treated as the same, the condition of granting of an enforcement clause that the statutory text requires for the certified copy disappears. In the commencement of compulsory execution, knowing and presenting belong to different determinations.
The discomfort left by this distinction is plain. A creditor, having won and already knowing the content of the written judgment, cannot obtain execution with a copy alone. The counterargument that formal documents may delay once more a right already confirmed is aimed at that loss. The point at which a confirmed right is put into enforcement is postponed, and the creditor must undergo a separate document procedure to move the victory secured into execution. For one seeking to realize a right, that delay is itself a cost. Even so, the author's conclusion is maintained. Without erasing the disadvantage of the delay pointed out by the counterargument, the document requirement demanded at the stage of commencement of execution cannot be replaced by possession of a copy.
The facts confirmed in this scene are that A obtained a winning judgment and that A did not distinguish whether service was made on debtor B and whether an enforcement clause was necessary. Contrasting this scene with the definition of an enforceable certified copy, it is not confirmed whether what A holds in hand is a certified copy of a judgment to which an enforcement clause has been granted. Whether service occurred, and whether the judgment became final and conclusive, were likewise not fixed by the scene, and these remain undetermined. Accordingly, from this scene alone it cannot be asserted either that the commencement of compulsory execution is possible or that it is impossible. Only the distinction within the scope that A cannot proceed to execution with a copy alone is established. Where the type of the title or the status of service or finality is not confirmed, the determination remains undetermined.
Dividing the boundary between the conclusions this section permits and those it does not, it is as follows. What is permitted is defining an enforceable certified copy as a certified copy of a judgment to which an enforcement clause has been granted, distinguishing possession of a copy of the written judgment from presentation of that certified copy, and the determination that a copy cannot substitute for an enforceable certified copy. What is not permitted is any confirmation that A's execution is actually possible or impossible, any categorical assertion regarding the actual occurrence of service or finality, and any account of the actual results of execution. The distinction that execution does not proceed on a copy alone, and the determination of which document, when prepared, achieves execution in practice, are different questions. While acknowledging the weight of the counterargument that formal requirements may delay the enforcement of a substantive victory, the distinction between a copy and a certified copy is maintained.
2.7The Link to the Application and the Dispositive Part
Taking up from the preceding section that a copy of a written judgment obtained from the internet cannot be treated as an enforceable certified copy, the present question asks whether a copy of a written judgment and the document upon which execution is based are the same thing. The state of reading and knowing the content of a judgment, and preparing that content as a document capable of being put forward for execution, are different demands.
Article 28 of the Civil Execution Act indicates what documents are required for the commencement of compulsory execution. That provision places the requirement in a certified copy of a judgment with an enforcement clause, and such a certified copy of a judgment bearing an enforcement clause is called an enforceable certified copy (Article 28 of the Civil Execution Act). This wording presupposes not the judgment itself but a document combining the two elements of a certified copy of a judgment and an enforcement clause. What the subject reads and knows remains separate, and the requirements of the document placed before the execution agency become the object of this wording.
The link joining this basis with the conclusion of this section likewise lies in that distinction. In execution based on a judgment, the reason the requirement of a certified copy with an enforcement clause is distinguished from possession of a copy is that what a copy confirms is the content of the judgment, whereas what the certified copy and enforcement clause provide is the authority for execution. An enforceable certified copy means a certified copy of a judgment to which an enforcement clause has been granted. Even if one holds several copies of the same paper, a copy without an enforcement clause does not fall within this definition.
A, having already prevailed in the judgment and knowing the content of that victory, fails to distinguish whether service was made on B and whether an enforcement clause is necessary, and performance is postponed while documents are gathered. The disadvantage that form may delay a right already confirmed is not erased here. The delay cost of documents cannot serve as grounds for replacing the document requirement set by the wording with possession of a copy.
The fact confirmed in this scene is only that A obtained a winning judgment, and A did not make the distinction regarding whether service was made on B and whether an enforcement clause was necessary. Whether a final-and-conclusive or provisional-execution designation, an enforcement clause, a certificate of conditions, or a certificate of service was actually prepared is not settled by this scene and remains undetermined. Where the type of the title or the status of service or finality is not confirmed, the commencement of compulsory execution is not determined from this scene alone. However, the change of condition that if the matter shifts from an ordinary judgment to a special title such as a recommendation to perform the same enforcement clause rules are not applied as they stand, is merely a sentence used in this comparative examination and not a new fact arising in the scene.
What this section permits is the distinction that a copy of a written judgment and the document upon which execution is based are not the same, and the limitation that the requirement of a certified copy with an enforcement clause cannot be met by possession of a copy. What this section does not permit is either the determination that every kind of execution is entirely blocked if there is only a copy, or the determination that reads a copy as a certified copy.
2.8The Scope This Section Undertakes
That conclusion was the distinction that a copy of a written judgment and the document upon which execution is based are not viewed as the same. In this scene, the knowledge A holds and the document A can present do not overlap. Knowing the fact of victory does not mean possessing the qualification to demand execution before the execution agency. Then, after distinguishing a final and conclusive judgment from a final judgment with a declaration of provisional execution as the basis for execution, what document must one hold in hand in order to begin compulsory execution at all? This question directly touches upon the task, in execution based on a judgment, of distinguishing the requirement of a certified copy with an enforcement clause from possession of a copy.
As to this question, Article 28 of the Civil Execution Act specifies the document necessary for the commencement of compulsory execution. The wording of its paragraph (1) provides that "compulsory execution may be conducted only where there is a certified copy of a judgment with an enforcement clause (hereinafter referred to as 'enforceable certified copy')" (Article 28 of the Civil Execution Act). In this wording, the subject is the creditor seeking to apply for compulsory execution, the act is the commencement of compulsory execution, and the condition is possession of a certified copy of a judgment with an enforcement clause. The provision fixes, in this paragraph, the term referring to a certified copy of a judgment to which an enforcement clause has been granted as "enforceable certified copy." Here, an enforceable certified copy means a certified copy of a judgment to which an enforcement clause has been granted. A copy does not fall within the requirements prescribed by that wording. Other issues are not the province of this paragraph.
The point at which this wording connects with the distinction established earlier lies in separating the content of a judgment from the form of execution. In execution based on a judgment, the requirement of a certified copy with an enforcement clause is distinguished from possession of a copy. The creditor's knowing the content of the judgment and possessing a copy of the written judgment is a state separate from presenting an enforceable certified copy. The former is awareness of the content of the victory; the latter is the document requirement that enables the execution agency to commence compulsory execution. The reason these two must be distinguished is that a certified copy of a judgment with an enforcement clause is designated as the document necessary for the commencement of execution. There is no basis in this wording for creating a new exception holding that the requirement can instead be met by possession of a copy, or for conferring on a copy the legal effect of being recognized as enforceable. While leaving intact the premise distinguishing a final and conclusive judgment from a final judgment with a declaration of provisional execution, both are placed before the same formal requirement of an enforceable certified copy with respect to the commencement of compulsory execution.
That formal requirement has the aspect of delaying the realization of a victory already confirmed. The counterargument that document form may delay the enforcement of a substantive victory is aimed at the point that a creditor whose right is confirmed by a final and conclusive judgment must pass again through the procedural gateway of the certified copy and the enforcement clause. The creditor has had the right confirmed by the judgment, but to move that right into actual execution, additional documents must be prepared. Delay means that much time and effort, and the inconvenience also remains that in the meantime the debtor's property condition may change. The loss pointed out by this counterargument should not be erased. The gist of the counterargument is that the substance of the victory should be realized swiftly, but substituting a copy for the channel of that realization would result in applying to the commencement of execution a requirement different from the wording prescribed by Article 28 (1). The criticism that form causes delay does not change the requirement of the provision, and remains a matter of finding a response within the scope in which that requirement operates as set.
Returning this distinction to the synthetic scene, the fact that A obtained a final and conclusive judgment and whether A can commence execution remain separate questions. A knows the content of the judgment but did not distinguish whether service occurred and whether an enforcement clause is necessary; therefore, from this scene alone it cannot be determined whether the requirements for the commencement of compulsory execution have been prepared. Those Records are the certified copy of the judgment, the final-and-conclusive or provisional-execution designation, the enforcement clause, the certificate of conditions, and the certificate of service, and it is not confirmed which Records A secured. Whether service occurred, whether the judgment became final and conclusive, and whether there is a declaration of provisional execution were likewise not settled in the scene. Therefore, the commencement of compulsory execution is possible where that document and proof are prepared, and is blocked where the necessary enforcement clause, certificate of conditions, and service are not prepared. Which is the case is not confirmed from the scene alone. The distinction that an enforceable certified copy cannot be regarded as prepared merely by possession of a copy of the written judgment stands unchanged. A copy of the written judgment cannot substitute for an enforceable certified copy.
What this section has confirmed is the distinction that, regarding the commencement of compulsory execution based on a judgment, a certified copy of a judgment with an enforcement clause is required, and the boundary that a copy of the written judgment cannot substitute for that requirement. Beyond this, whether service occurred, whether the judgment became final and conclusive, and whether there was a declaration of provisional execution were not confirmed in this scene. If a copy is substituted for a certified copy, the distinction collapses; yet it likewise must not be assumed that, because the certified copy and the enforcement clause have been prepared, actual recovery has at once been achieved. Satisfaction of the document requirement means that the path to the commencement of compulsory execution is open; it does not mean the results of payment, delivery, or recovery. If it is confirmed that the matter shifts from an ordinary judgment to a special title such as a recommendation to perform, the same enforcement clause rules are not applied as they stand.
2.9Application of the Text of the Provisions and the Holdings of Precedents
In the preceding stage of analysis, a final and conclusive judgment was distinguished from a final judgment with a declaration of provisional execution as the basis for execution. From the circumstance alone that the content of the judgment has been learned in this scene, it is not determined what document must be presented in order to take that judgment as the ground for execution. Within the scope of the relevant wording, it asks whether a copy of a written judgment and the document upon which execution is based are the same.
The relevant source text for this question is Article 28 (1) of the Civil Execution Act. Its wording provides: "(1) Compulsory execution may be conducted only where there is a certified copy of a judgment with an enforcement clause (hereinafter referred to as 'enforceable certified copy')." The subject indicated by this wording is the execution agency that carries out the compulsory execution, the act is the commencement of compulsory execution, and the condition is the existence of a certified copy of a judgment with an enforcement clause. The wording requires not the certified copy of the judgment itself but a certified copy of a judgment to which an enforcement clause has been granted. Other issues in the same paragraph lie outside this scope.
This wording is taken as the basis for adjudging the commencement of compulsory execution. Knowing the content of a judgment and preparing an enforceable certified copy are separate stages. The former is a matter of recognizing the effect of the judgment; the latter is a matter of whether the execution agency can commence execution based on that judgment. Therefore, the mere circumstance of possessing a copy of the written judgment cannot be said to satisfy the condition of the latter. Only by distinguishing these two stages can the point in time of commencement of execution and the necessary documents be kept from blurring. The wording alone is made the basis of this determination, and it is not extended to the reasons for the judgment.
Even if creditor A already knows the content of the winning judgment and has confirmed the right to receive performance based on that judgment, it is true that the procedure necessary to prepare an enforceable certified copy delays its enforcement. The loss and inconvenience of delaying a confirmed right through the question of document form do not disappear. Since no enforcement clause has been granted to a copy of a written judgment obtained from the internet, it does not correspond to the certified copy of a judgment with an enforcement clause required by the wording.
In the synthetic scene, creditor A obtained a winning judgment and did not distinguish whether service was made on debtor B and whether an enforcement clause was necessary. Contrasting this fact with the conditions above, whether service occurred and whether an enforcement clause was granted are each separate objects of confirmation. The former is a circumstance related to the taking effect or finality of the judgment, and the latter is a component element of an enforceable certified copy. From the scene alone, it is not confirmed whether A has prepared a certificate of service or an enforcement clause, or whether it is a final and conclusive judgment or a judgment with a declaration of provisional execution. The adjudication attendant on changes in these conditions cannot be settled from this scene alone.
The conclusion permitted in this section is that, in execution based on a judgment, the requirement of a certified copy of a judgment with an enforcement clause is distinguished from possession of a copy. From the mere circumstance that creditor A knows the content of the judgment and holds a copy, it cannot be said that the conditions for the commencement of compulsory execution have been prepared. Conversely, the mere circumstance that A has not prepared an enforceable certified copy does not mean denying A's rights or that execution is forever impossible. The parts where the status of service or finality is not confirmed remain undetermined.
2.10Fine Distinctions Within the Stage
The preceding section distinguished, as bases of execution, a final and conclusive judgment and a final judgment containing a declaration of provisional execution, and the question now is what parts remain to be divided and decided afresh within the commencement of compulsory execution. The circumstance that one knows the content of the judgment held by the creditor, and whether on that circumstance alone one can say that one has the documents to commence execution before the enforcement agency, are separate questions. This question concerns not whether a party prevails in the suit itself, but rather how to divide the requirements of the documents needed for commencement.
The statutory provision corresponding to this question is Article 28 (1) of the Civil Execution Act, and here the author confirms that "compulsory execution may be conducted only where there exists a certified copy of a judgment with an enforcement formula (hereinafter referred to as 'enforceable copy')" (Article 28 of the Civil Execution Act). This wording presupposes that the party to compulsory execution is the creditor applying for execution, and sets the condition that the document he is to present to the enforcement agency must be a certified copy of a judgment with an enforcement formula. Here, a certified copy of a judgment means a certified copy of the judgment prepared by the court, and the enforcement formula is the means by which enforcement force is conferred upon that certified copy. This paragraph addresses only the document requirements needed for the commencement of execution, and does not address other issues such as the object or scope of execution.
Linking this wording with the conclusion of this section, it becomes apparent that, in the commencement of compulsory execution, knowing the content of the judgment and presenting an enforceable copy are different stages of determination. If the preceding section divided final and conclusive judgments and judgments containing a declaration of provisional execution as the bases of execution, this section separately asks, on the basis so established, about the documents needed for commencement. Accordingly, the detailed distinctions within the stage are limited to the conditions of the working case, the blocked case, and the undetermined case. In other words, only where there are in place, matching the type of enforceable title, finality or provisional execution, a certified copy, an enforcement formula, proof of the conditions, and service, are the requirements for commencement regarded as satisfied; where there is only a non-final judgment without provisional execution, or where the required enforcement formula, proof of the conditions, or service is not in place, the matter is regarded as blocked. Where the type of title or the status of service or finality cannot be confirmed, the matter is left undetermined. The limit of this distinction is that no stage is newly created beyond the conditions expressly stated.
The strongest counterargument lies in the point that a documentary formality may delay the enforcement of a substantive victory. Even though the creditor has already prevailed and had his right recognized, if execution is delayed because of the procedure of obtaining documents such as a certified copy and an enforcement formula, formality then obscures substance. The counterargument points out that delay caused by document problems enlarges the inconvenience and loss of being unable to realize a right in time. Even so, the author's answer does not change. For although inspection by means of a copy may serve as a way of knowing the content, it cannot be regarded as possessing a certified copy of a judgment to which an enforcement formula has been granted. Thus, without denying the burden of delay pointed out by the counterargument, the conclusion is maintained within the scope of the document requirements for commencement.
Where, in a synthetic scene, the fact that Creditor A received a winning judgment is placed together with the circumstance that it was not distinguished whether service was made upon Debtor B and whether an enforcement formula is required, it cannot be asserted that the requirements of proof of the conditions and service have been satisfied, since whether service occurred is unconfirmed. Whether there is a designation of finality or provisional execution, and whether an enforcement formula has been granted, are likewise not confirmed in the record. Which of the certified copy of the judgment, the designation of finality or provisional execution, the enforcement formula, the certificate of proof of the conditions, and the certificate of service is present is not determined in this scene. The contrasting condition, that when an ordinary judgment is replaced by a special enforceable title such as a recommendation to perform the same enforcement-formula rule is not applied as it stands, is also left as it is, so long as this scene presupposes an ordinary judgment. The actual outcome of service or finality cannot be determined from this scene.
The conclusion this section permits is that, when dividing stages within the commencement of compulsory execution, only the expressly stated conditions of the working case, the blocked case, and the undetermined case are taken as the standard, and that the enforceable copy is limited to a certified copy of a judgment to which an enforcement formula has been granted. The conclusions it does not permit are to regard the requirements for commencement as satisfied merely by possession of a copy, or to create a new stage beyond the expressly stated conditions and to fix its outcome thereby. Even if unconfirmed items remain, the settled narrow conclusion itself does not change.
2.11Synthesis of Effectiveness, Blockage, and Undetermination
A knows the content of the judgment in question, but what must be handed to the enforcement agency on the strength of that document alone remains a separate problem. The question here is whether a copy of the judgment and the document for execution are the same.
The provision answering this question is found in Article 28 of the Civil Execution Act. Article 28 (1) declares: "(1) Compulsory execution may be conducted only where there exists a certified copy of a judgment with an enforcement formula (hereinafter referred to as 'enforceable copy')." The party designated by this wording is the creditor applying for compulsory execution; the conduct required is the presentation of a certified copy of a judgment with an enforcement formula; and the condition is the possession of a certified copy upon which the granting of the enforcement formula has been completed. The wording has bound the possibility of execution to the form of the document.
Where this requirement is met, the commencement of compulsory execution opens; where it is not met, it does not open. Because the fixing of the judgment's content and the granting of the enforcement formula are separate stages, mere recognition of the fact of prevailing does not satisfy the latter requirement. Only where finality or provisional execution, the certified copy, the enforcement formula, proof of the conditions, and service are in place matching the type of enforceable title does the gate of commencement open, and if even one of the required documents is missing, commencement is blocked.
If a right already secured by judgment is put through formal examination once more, the creditor suffers loss of time and expense, and the inconvenience remains that the value of the effectiveness of a final and conclusive judgment is impaired. A copy is merely material for confirming the content of the judgment and cannot prove the requirement of the granting of an enforcement formula, and therefore cannot serve as a basis for commencement. Without erasing the burden of delay pointed out by the counterargument, one cannot answer by relaxing the formal requirements.
Whether service was made and whether an enforcement formula was granted are each separate items of confirmation, and on this scene alone it cannot be judged whether the conditions for commencement are satisfied. This state, in which the type of enforceable title and the status of service and finality are unconfirmed, remains undetermined, being neither open nor blocked. The point that, when an ordinary judgment is replaced by a special enforceable title such as a recommendation to perform, the same enforcement-formula rule is not applied as it stands is also a reason not to hurry in changing this undetermined state into an open one.
The conclusion this section permits is to regard the conditions for commencement as consisting in the presence of finality or provisional execution, a certified copy, an enforcement formula, proof of the conditions, and service matching the type of enforceable title; what it does not permit is to regard commencement as opening on the strength of a copy of the judgment alone. If unconfirmed items remain, they are left undetermined as they are, and a lack of material is not converted at once into impossibility of relief.
2.12Conclusion Carried Over to the Next Section
The conclusion up to the preceding section is carried over in the single sentence that final judgments containing a declaration of provisional execution and final and conclusive judgments are distinguished as the bases of execution. In this scene, one cannot advance to the stage of execution without making clear what it is that he holds in his hand. The question whether a copy of the judgment and the document for execution are the same opens here. The analysis now confirms what document is required in execution founded on a judgment.
As to execution, Article 28 of the Civil Execution Act provides that "compulsory execution may be conducted only where there exists a certified copy of a judgment with an enforcement formula." This wording requires of the creditor, the party who performs the act of compulsory execution, a certified copy of a judgment with an enforcement formula, that is to say, an enforceable copy. An enforceable copy is a certified copy of a judgment upon which an enforcement formula has been granted, and differs in legal character from a copy that transcribes the content of the judgment in an ordinary manner. Here it suffices to fix the distinction between a certified copy bearing an enforcement formula and documents that do not, without addressing the other requirements for the granting of the enforcement formula.
Linking the wording above with the distinction derived from that wording yields the conclusion that, in execution founded on a judgment, the requirement of a certified copy with an enforcement formula must be distinguished from the possession of a copy. The former is a document possessing the requirements that enable execution to be commenced before the enforcement agency, while the latter merely enables one to know the content of the judgment. The circumstance that the creditor knows the content of the judgment accurately is understood as his having secured the latter, but is a matter separate from his having secured the former.
The counterargument that a documentary formality may delay the enforcement of a substantive victory is, in itself, a valid pointing out of loss. If the measures needed to realize a right confirmed by judgment are delayed because of the document's formal requirements, the creditor obtains the benefit of the judgment he won later in time. Yet this inconvenience does not arise from a renewed examination of an already confirmed right; it arises from confirming whether a document enabling execution to be commenced exists. Since a copy of the judgment from the internet cannot be treated as an enforceable copy, the delay pointed out by the counterargument remains a matter to be resolved by going through the procedure of meeting those formal requirements.
The facts given in the synthetic scene go no further than that Creditor A received a winning judgment, and that it was not distinguished whether service was made upon Debtor B and whether an enforcement formula is required. On these facts alone, it cannot be determined whether A secured a document bearing enforcement force, or on which of a final and conclusive judgment and a judgment containing a declaration of provisional execution it is founded. Whether service was made and whether the judgment became final and conclusive are also unconfirmed, and whether actual service was made upon Debtor B is not recorded. Accordingly, whether what is needed at the stage of commencement of compulsory execution is in place remains undetermined.
The conclusion permitted in this section is the narrow distinction that, in execution founded on a judgment, a certified copy of a judgment with an enforcement formula is required, and that a copy of the judgment cannot take its place. This conclusion does not mean that Creditor A's judgment is void or that he has lost the right he obtained, nor does it settle whether service was made or whether the judgment became final and conclusive. If performance is subject to a condition, what further must be proved?