Summary
This chapter applies the rule of prior or simultaneous service of the judgment and the rules on additional service according to conditions and succession.
5.1The Standard by Which the Path Opens
If one possesses an authentic copy, may execution be carried out without notice? What standard opens the gateway to this relief? Building on the earlier conclusion that the requirements of an execution clause for a successor must be connected with the designation of the parties to execution, when the opportunity to learn the basis of execution is omitted, the opportunity to contest execution is pushed back as well. Creditor A obtained a judgment in his favor but did not distinguish whether it had been served on Debtor B and whether an execution clause was necessary. In this scene, whether the mere fact of obtaining an authentic copy permits execution without notice, or whether a separate procedure must follow, remains at issue. Here, to say that the gateway opens means that one has reached the entrance at which an application for compulsory execution may be filed; it does not mean that actual recovery has succeeded. If so, the criterion marking the entrance to this relief is whether one possesses the document, or whether the document has been delivered to the opposing party. (Civil Execution Act Article 39)
To answer this question, the text of the provision is examined. Civil Execution Act Article 39 paragraph (1) provides: "Compulsory execution may be commenced only where the names of the person applying therefor and the person against whom execution is to be enforced are stated in the judgment or in the execution clause affixed thereto, and the judgment has already been served or is served at the same time." This language identifies as the actors of the act of compulsory execution the person applying therefor and the person against whom execution is to be enforced, and requires the indication of their names. The conditions are two: that such indication appear in the judgment or in the execution clause affixed thereto, and that service have already been made or be made simultaneously with commencement. The service for commencement of execution spoken of here means the statutory delivery that gives notice of the basis of execution and related documents. (Civil Execution Act Article 39)
Connecting this language with the conclusion of this section, the entrance criterion of this relief rests not on the existence of the document but on the delivery of the document. Where one possesses, suited to the type of title, finality or provisional execution, an authentic copy, an execution clause, certification of the condition, and service, the entrance to this relief opens. Here two determinations must be distinguished. One is the documentary verification of whether the requirements suited to the type of title have been met; the other is the verification of delivery as to whether that document has been served. Possession of an authentic copy without service is a state satisfying only the former, and the deficiency in the latter is not separately cured. The language of prior or simultaneous service presupposes precisely this distinction. (Civil Execution Act Article 39)
Yet it can hardly be denied that notice may give an opportunity to conceal property. If a debtor who has learned the basis of execution in advance moves or conceals property, a loss arises in which the effectiveness of execution is rendered powerless, and the inconvenience also follows that formal documents may again delay a right that has already been confirmed. The longer the interval between the point at which the right is confirmed and the point at which execution may actually begin, the greater the time and cost borne by the creditor. Even so, possession of a copy of the judgment cannot be turned into satisfaction of the service requirement. Service is a procedural device that enables the opposing party to know the basis of execution and contest it, and its function must be maintained separately, not placed alongside the creditor's interest in speed. The circumstance that the loss is great is no ground for changing the content of the requirement.
The analysis now returns to the synthetic scene. Creditor A has secured the judgment in his favor in the form of an authentic copy, and whether that judgment was served on Debtor B has not been confirmed. Whether an execution clause is necessary has likewise not yet been determined. These facts alone cannot determine whether service has already occurred, and so the existence of service remains undetermined. Nor has it been settled in this scene whether a notation of provisional execution is present, whether a certificate of the condition is required, or whether a successor of the debtor is involved. What is confirmed is only that possession of an authentic copy and completion of service are distinct requirements, and that A may rush into execution without distinguishing the two. The fact that, when a general judgment gives way to a special title such as a performance order, the same execution clause rules are not applied as they stand likewise means that, when the conditions of this scene change, the standard of determination changes with them.
In sum, the mere fact that one possesses an authentic copy does not permit execution without notice; the condition of prior or simultaneous service of the judgment must be satisfied as well before the entrance to this relief opens. Where the notation of finality or provisional execution, the execution clause, certification of the condition, and proof of service are furnished according to the type of title, and where the performance, parties, and conditions specified in the purport of the claim make it possible to defend the right in the chosen action, that standard is met. Where there is only an unconfirmed judgment without provisional execution, or where the required service has not been furnished, the entrance remains closed. Where the type of the title or the status of service and finality is unconfirmed, judgment is merely reserved; it is not immediately declared that no relief is available.
5.2The Conditions That Block Relief
When the opportunity to learn the basis of execution is omitted, the opportunity to contest execution is pushed back as well. The preceding section took the view that this relief operates where, suited to the type of title, finality or provisional execution, an authentic copy, an execution clause, certification of the condition, and service are furnished. If so, when even one is missing from the same bundle of materials—especially when Creditor A has obtained a judgment in his favor but has not distinguished whether it was served on Debtor B and whether an execution clause is necessary—where does the commencement of compulsory execution stop?
Civil Execution Act Article 39 sets out the requirements for commencement of execution in three paragraphs. This language requires together the indication of the names of the person applying therefor and the person against whom execution is to be enforced, and prior or simultaneous service of the judgment.
The above language places service as a procedural condition at the time of commencement, while additional service arising from conditions and succession is dealt with separately by Article 39 paragraphs (2) and (3). The author confirms this bundle of conditions as one, and then takes the view that this relief is barred where there is only an unconfirmed judgment without provisional execution, or where the necessary execution clause, certification of the condition, and service have not been furnished. The notation of finality or provisional execution is the determination that establishes enforceability, whereas the execution clause, certification of the condition, and service are documents that open the qualification and opportunity to exercise that enforceability in a particular procedure; only by confirming the two separately does the barring condition appear precisely.
The strongest counterargument targets the loss that notice may give an opportunity to conceal property—that is, the loss that, at the moment Debtor B receives service, he may move his property and the effectiveness of execution may be delayed. The inconvenience also operates at the same time that formal documents may again delay a right already confirmed. The authentic copy held in Creditor A's hands is not in itself proof of service, and does not take the place of the fact of delivery to B; hence the inconvenience of delay cannot abolish the requirement of statutory delivery.
The facts confirmed in the synthetic scene are that Creditor A obtained a judgment in his favor, and that he did not distinguish whether it was served on Debtor B and whether an execution clause was necessary. These facts alone do not settle the presence or absence of proof of service, the notation of finality or provisional execution, or whether an execution clause has been issued; whether the conditions have been furnished therefore cannot be judged from this scene alone. What remains is a state of uncertainty, and that state itself does not mean that no relief is available. However, because when a general judgment gives way to a special title such as a performance order the same execution clause rules are not applied as they stand, whether there is a bar cannot be asserted without first confirming the type of title.
The conclusion this section permits is narrow. The conclusion that execution may proceed without notice merely because one possesses an authentic copy cannot emerge from this section; conversely, all that is confirmed is that only after proof of service and the remaining conditions are verified does the path to commencement open. Whether such documents were actually collected, how much was delivered to B, and how much that execution recovered are not determined here.
5.3The Boundary That Remains When There Is No Data
The question whether one may execute without notice upon possessing an authentic copy is not closed by the single fact of holding the document. What lies before it is the task of applying the rules of prior or simultaneous service of the judgment and additional service under conditions and succession. Only after first settling what service is as a procedure does the next determination diverge.
The source text corresponding to this question is Civil Execution Act Article 39 (Civil Execution Act Article 39). Its paragraph (1) provides that compulsory execution may be commenced only where the names of the person applying therefor and the person against whom execution is to be enforced are stated in the judgment or in the execution clause affixed thereto, and the judgment has already been served or is served simultaneously (Civil Execution Act Article 39). The actors prescribed by the language are the parties to execution, the act is service of the judgment, and the condition is service made before commencement or at the same time. The execution clause is a document that also contains the designation of the parties, but it does not substitute for service itself. The issues dealt with by the other paragraphs of the Article are not broadened at this point.
The timing requirement of prior or simultaneous service and the indication requirement that the names of the parties be written in the execution clause are placed as separate stages of determination. On the premise of this distinction, the author provides that, where the type of the title or the status of service and finality is unconfirmed, matters as to which the materials of determination are not specified are left undetermined, distinguished from impossibility. The mere circumstance that there are no materials cannot support the assertion that execution is impossible; nor can it be held that the requirements for commencement have been furnished. Even in the case of Creditor A holding a copy of the judgment, the determination that the service requirement has been satisfied is not reached. The fact that unverified items remain does not at once erase the conclusion.
The counterargument targets the practical loss that notice may give an opportunity to conceal property. If the fact and time of service become known to Debtor B, room arises to spirit property away. It is also pointed out that formal documents may again delay a right already confirmed. If service for commencement of execution is the statutory delivery that gives notice of the basis of execution and related documents, then the fact that such notice occurred remains a requirement to be filled by other evidence. Without erasing the inconveniences of concealment and delay pointed out by the counterargument, only the seat of determination is set apart.
In the synthetic scene, the type of judgment Creditor A received, whether it has become final and conclusive, and whether issuance of an execution clause is necessary are not recorded. If A holds an authentic copy of a final and conclusive judgment, whether the service requirement is satisfied must be proved separately. If it is an unconfirmed judgment bearing only a notation of provisional execution, it is difficult to view it as in itself meeting the requirements for commencement. However, because it has not been determined here which of the two cases obtains, this item remains in the position of the undetermined. When a general judgment gives way to a special title such as a performance order, the same execution clause rules are not applied as they stand.
The conclusion this section permits goes no further than separating the possession of an authentic copy from the satisfaction of the service requirement, and leaving unverified matters undetermined rather than treating them as impossibility. No determination is made here that the service requirement has been satisfied or that execution is impossible. The kinds of materials that must bear the next determination are the copy of the judgment, the notation of finality or provisional execution, the execution clause, the certificate of the condition, and the proof of service.
5.4The Records Needed for Determination
Having accepted the point that the requirements of an execution clause for a successor must be connected with the designation of the parties to execution, this stage asks whether execution without notice becomes possible merely by possessing an authentic copy. In this scene, possession of an authentic copy and service are different questions, and what records are needed in order to determine the stage remains the outstanding question.
Civil Execution Act Article 39, which prescribes the requirements for commencement of execution, directly regulates the time and conditions of commencement of compulsory execution. Paragraph (1) provides: "Compulsory execution may be commenced only where the names of the person applying therefor and the person against whom execution is to be enforced are stated in the judgment or in the execution clause affixed thereto, and the judgment has already been served or is served at the same time." This language makes the indication of the names of the applicant and the person against whom execution is enforced, and prior or simultaneous service of the judgment, conditions for commencement. That is, service is not a matter that may be replaced by possession of an authentic copy, but occupies its place as a separate element of record necessary to the determination of commencement.
Paragraph (2) of the same Article requires additional service in cases of conditional performance or succession. "Where the enforcement of a judgment is subject to a fact to be proved by the creditor according to its purport, or is made for a successor of the creditor indicated in the judgment, or against a successor of the debtor indicated in the judgment, the judgment to be enforced and, in addition thereto, the execution clause affixed thereto shall be served on the successor of the debtor before compulsory execution is commenced." Paragraph (3) further fixes the time of service of the duplicate where the execution clause is issued upon a certificate. Accordingly, the determination of the stage is made solely on the materials recorded in the copy of the judgment, the notation of finality or provisional execution, the execution clause, the certificate of the condition, and the proof of service. Possession of an authentic copy and completion of service must be distinguished, because the former is the task of confirming by record the state of holding the document, and the latter is the task of confirming by record that delivery has occurred. Missing records are not filled in by assumption.
The counterargument that notice may give an opportunity to conceal property targets a substantive loss. If Debtor B learns of the execution in advance, room arises to move property, and the inconvenience is that Creditor A must spend more time and cost to enforce a confirmed right. The observation that formal documents may again delay a right already confirmed proceeds in the same direction. Service for commencement of execution means the statutory delivery that gives notice of the basis of execution and related documents, and touches upon the procedural guarantee that affords the debtor an opportunity to contest the basis of execution.
In the synthetic scene, Creditor A has secured an authentic copy of the judgment in his favor, and whether service was made on Debtor B and whether an execution clause is necessary have not been confirmed. Measured against the record requirements, the stage cannot be fixed so long as the proof of service and the execution clause do not appear in the records. Where service or the status of finality is unconfirmed, judgment is reserved; this is not unavailability of relief but a state of unverified materials. Because the actual time of service and the presence or absence of a notation of provisional execution cannot be fixed from the scene alone, that item remains undetermined.
Therefore it cannot be asserted that execution without notice is possible on the sole fact that one possesses an authentic copy; instead the conclusion is placed at determining the stage by the materials recorded in the copy of the judgment, the notation of finality or provisional execution, the execution clause, the certificate of the condition, and the proof of service. The permissible conclusion is to discern whether commencement is possible within the range of requirements confirmed by record; the impermissible conclusion is to regard the requirements for commencement as satisfied by possession of an authentic copy alone, without verifying the record of service.
5.5Circumstances That Change the Decision
Starting from the premise that the requirements for an execution clause for a successor and the designation of the parties to execution must be linked, what remains is which change reverses the determination.
The requirements for the commencement of compulsory execution are prescribed in Article 39 of the Civil Execution Act. Its paragraph (1) provides: "(1) Compulsory execution may be commenced only where the names of the person who applied for it and the person against whom execution is to be enforced are indicated in the judgment or in the execution clause appended thereto, and where the judgment has already been served or is served at the same time." Here, the names of the person who applied and the person against whom execution is to be enforced must be indicated in the judgment or the execution clause, and service of the judgment must either have been completed before commencement or be made at the same time as commencement.
Connecting this text with the preceding determination, possession of an authenticated copy and service each assume different roles. The authenticated copy is merely a document proving the foundation of execution; it cannot substitute for the circumstance that the copy was delivered to the debtor. Paragraph (2) of Article 39 provides that, in executions against a successor and on judgments subject to conditions, "in addition to the judgment to be executed, the execution clause appended thereto shall be served on the successor of the debtor before compulsory execution is commenced," and paragraph (3) requires service of a duplicate of the execution clause issued on the basis of a certificate. Accordingly, the determination that the service requirement has been met and the determination that the execution clause is sufficient are examined separately before proceeding to the stage of commencement.
The strongest counterargument is that notice gives the debtor time to conceal assets. If formal documentary procedure delays a right that has already been confirmed, the loss suffered by the creditor and the inconvenience at the scene of execution are not small. The author acknowledges this loss but answers that possession of an authenticated copy of the judgment cannot be substituted for satisfaction of the service requirement. The way to reduce the risk created by notice is to be found not in doing away with the service requirement, but in strictly observing the order of service and commencement.
In this scene, A holds an authenticated copy of the judgment but has not confirmed whether it was served on B, and has not examined whether an execution clause is needed. If a certificate of service or a record of the execution clause is confirmed, the requirements for commencement can be examined, but on the scene alone the fact and timing of service remain undetermined. Nor is it determined from the scene whether the type of enforceable title is an ordinary judgment or a special title such as a performance recommendation, and therefore the difference in rules between the two cases cannot be fixed either.
The conclusion that possession of an authenticated copy alone permits immediate execution without notice is not permissible. Yet neither can one categorically declare that relief is impossible merely because materials are lacking. Once that designated change is confirmed, the existing determination of blockage and effectiveness is discarded and the matter is re-determined from the commencement stage of compulsory execution.
5.6The Strongest Counterargument and the Answer
The question remaining in this scene is whether one may execute without notice upon obtaining an authenticated copy. The concern that notice may afford an opportunity to conceal assets is set forth as the strongest counterargument. The author answers that even so, possession of an authenticated copy of the judgment cannot be substituted for satisfaction of the service requirement.
Article 39 of the Civil Execution Act prescribes the requirements for commencement of execution in its text. Paragraph (1) states that compulsory execution may be commenced only where the names of the person who applied for compulsory execution and the person against whom execution is to be enforced are indicated in the judgment or the execution clause appended thereto, and where the judgment has already been served or is served at the same time. The actors indicated by this text are the person who applied and the person against whom execution is to be enforced. The act is the commencement of compulsory execution, and the conditions are the indication of names and prior or simultaneous service of the judgment.
Since the provision makes this service a requirement for commencement, possession of the authenticated copy does not become a requirement that substitutes for service. The two things the author distinguishes are the state of holding the document in hand and the statutory delivery by which the document is made known to the other party. Even if the person applying for execution holds an authenticated copy of the judgment, if there has been no service on the debtor, the requirement for commencement prescribed by the provision is not met. Here one separates the author's application from the effect of the text. The text sets out the requirement, and the author determines that this requirement cannot be replaced by possession of the authenticated copy.
The strongest counterargument is aimed at the loss that notice may give an opportunity to conceal assets. If the debtor learns in advance, the debtor may move assets, and the rule requiring that the enforceable title and the execution clause be served together then leaves the creditor inconvenienced. The observation that formal documents may once again delay a right already confirmed arises from the same place. The author does not erase these disadvantages. Even so, the author maintains the answer that possession of an authenticated copy of the judgment cannot be substituted for satisfaction of the service requirement. The possibility of concealment to which the counterargument points does not become a ground for removing the requirement from the text.
What can be confirmed in this scene is the fact that creditor A obtained a judgment in his favor, but did not distinguish between whether it was served on debtor B and whether an execution clause was needed. Contrasting this fact with the conditions of the provision, the status of service and the execution clause requirement are each items to be verified. The authenticated copy of the judgment, the notation of finality or provisional execution, the execution clause, the certificate of proof of the condition, and the certificate of service are merely kinds of records documenting this verification; the scene does not say that any one item substitutes for another. Whether there was actual service on B, and whether there is a notation of finality or provisional execution, remain undetermined.
The conclusion this section permits remains within the scope that, where the indication of names and prior or simultaneous service of the judgment are in place, compulsory execution may be commenced. Even if an authenticated copy is held, if the service requirement is not met, that fact alone does not open the door to commencement; conversely, even if there was service, the necessary execution clause or certificate of proof of the condition is not thereby automatically obtained. Service and the authenticated copy refer to different requirements, and the inconvenience of concealment raised by the counterargument is no ground for merging the requirements into one. Here, the extension of reading possession of the authenticated copy as service is not permitted.
5.7The Link to the Application and the Dispositive Part
The conclusion of the preceding section was that possession of an authenticated copy of the judgment cannot be substituted for satisfaction of the service requirement. In this scene, the issue is whether, on the fact of obtaining the authenticated copy alone, one may skip notice and proceed to execution.
The service spoken of here means the state in which the judgment has been delivered to the person to receive the judgment, that is, the debtor against whom execution is to be enforced. That the names of the applicant and the person subject to execution are indicated in the judgment or the execution clause is a separate requirement demanded by the same paragraph.
To determine whether execution may be commenced under this text, one must first examine whether service preceded or was made at the same time as execution. Possession of the authenticated copy is merely the circumstance that the creditor's side has secured the document, and does not substitute for the fact that the judgment was delivered to the debtor's side. Furthermore, where the performance is subject to a condition, or where a successor of a party indicated in the judgment is involved, the judgment to be executed and the execution clause appended thereto must additionally be served before commencement (Article 39(2) of the Civil Execution Act). Where an execution clause is issued on the basis of a certificate, a duplicate of that certificate must also be sent to the debtor before commencement or at the same time as execution (Article 39(3) of the Civil Execution Act).
The counterargument that notice may give an opportunity to conceal assets is rooted in actual loss. If the grounds of execution are made known to the debtor in advance, the debtor may in the meantime move or conceal assets, and the creditor suffers the disadvantage of being left unable to recover despite having obtained a judgment securing its claim. The observation that formalities of documents may delay the realization of a right already confirmed points in the same direction. The rule requiring additional service where a condition or succession is involved likewise remains for the same reason.
In the synthetic scene, creditor A is in possession of a judgment in his favor and its authenticated copy, and it is not confirmed whether the judgment was served on debtor B. Nor has A distinguished what document constitutes the execution clause needed with respect to B. On these facts alone, it is not determined whether service has already been effected, and whether a certificate of proof of the condition or additional service arising from succession is required. Where the type of the enforceable title or the status of service and finality is unconfirmed, whether commencement is possible cannot be asserted.
Even if an authenticated copy is held, if the judgment has not already been served on the debtor or served at the same time as execution, compulsory execution cannot be commenced. Conversely, merely because the service requirement alone has been met, the indication of names, the necessary execution clause, the certificate of proof of the condition, or the additional service requirements are not automatically satisfied. What this section confirms is only the distinction between possession of the authenticated copy and service; it does not judge the results of actual recovery or the contents of unverified records.
5.8The Scope This Section Undertakes
Together with the question whether one may execute without notice upon holding an authenticated copy, this section takes as its premise that if the opportunity to learn the grounds of execution is lost, the opportunity to contest the execution is also pushed back. In this scene, the issue is whether A can commence execution with only the documents in hand.
Here, the indication of the names of the person who applied and the person against whom execution is to be enforced is a requirement specifying the subjects of execution, and service means the act of delivering the judgment, which is the foundation of execution, to the other party. The text is that execution may be commenced only when both requirements are satisfied together.
This provision defines service as the statutory delivery that makes known the foundation of execution and the related documents, that is, the service for commencement of execution, and makes that delivery a prior or simultaneous condition to the commencement of execution. This is a stage of determination distinct from possession of the authenticated copy. Even if documents such as the execution clause and the authenticated copy are in hand, if the judgment has not already been served or is not served at the same time, the requirements for commencement of execution are not met. The rules of additional service arising from conditions and succession are laid on top of that basic rule; they do not substitute for it.
That notice may give an opportunity to conceal assets is a distinct cost of this rule. The more the debtor is informed in advance, the more room arises for spiriting assets away, and formal documents may once again delay a right already confirmed. Since service is an independent requirement enabling the other party to know the grounds of execution, if its function is replaced by the fact of possession of the authenticated copy, the problem of depriving the party of the opportunity to contest remains as it is.
In the synthetic scene, A received an authenticated copy of the judgment and did not even distinguish whether an execution clause is needed. On this fact alone, it is not confirmed whether the judgment was served on B, whether it is a final and conclusive judgment or bears a notation of provisional execution, or whether a certificate of proof of the condition or an execution clause for a successor is required. What is recorded is the authenticated copy of the judgment, the notation of finality or provisional execution, the execution clause, the certificate of proof of the condition, and the certificate of service. So long as the type of the enforceable title or the status of service and finality is unconfirmed, the possibility of commencing execution remains undetermined.
The conclusion this section permits is limited to that the service requirement cannot be replaced by possession of the authenticated copy, and to the distinction that service for commencement of execution is the statutory delivery making known the foundation of execution and the related documents. The final determination whether commencement of execution is possible, the specific requirements for the certificate of proof of the condition or the execution clause for a successor, and the rules applicable where the title changes from an ordinary judgment to a special title such as a performance recommendation, are not dealt with in this section.
5.9Application of the Text of the Provisions and the Holdings of Precedents
It does not mean that execution is forthwith permitted on the strength of such possession of an authenticated copy of the judgment alone. If the preceding stage dealt with the relation between the authenticated copy and notice, the present question aims at a different point. It is the question what prescribes the time and conditions at which execution may be commenced—in other words, by what standard the questions of service and the execution clause in this scene shall be determined. The text distinguishing the time when this delivery is in place from the time when it is not governs the commencement of compulsory execution.
The relevant source text is Article 39 of the Civil Execution Act, whose paragraph (1) declares that compulsory execution "may be commenced only where the names of the person who applied for it and the person against whom execution is to be enforced are indicated in the judgment or in the execution clause appended thereto, and where the judgment has already been served or is served at the same time" (Article 39 of the Civil Execution Act). This text places two elements of commencement side by side. One concerns where the names of the person who applied and the person against whom execution is to be enforced must be indicated: the place of indication is the judgment or the execution clause appended thereto. The other is service of the judgment. The text records both the case of prior service and the case of simultaneous service, and does not contemplate commencement at a point beyond these.
Connecting the elements of this text fixes the basis for determining the commencement of compulsory execution. Here two stages must be read separately. The first is the designation of the parties, and the second is service of the judgment; commencement becomes possible when both are in place. Even if creditor A holds the authenticated copy, that is a fact relating to the element of designation and is not carried over to mean that the element of service is satisfied. Conversely, knowing the fact of service does not result in possessing a judgment or execution clause with names indicated. This distinction is the reason the questions of whether an execution clause is required and whether there was service must not be mixed, and it is also the boundary observed when applying only the text within the scope of the relevant source.
If the service requirement is placed at the commencement of compulsory execution, there arises the inconvenience that notice may give an opportunity to conceal assets. If debtor B learns the foundation of execution in advance, room arises to move or conceal assets, with the worry that, as a result, the substance of the judgment in favor obtained by creditor A may be realized only belatedly. The observation that formal documents may once again delay a right already confirmed points in the same direction. The relevant text records service as a condition of commencement, and an interpretation treating possession of the authenticated copy as satisfying that condition is a determination outside the text. The loss aimed at by the counterargument is left intact, but the method of resolving it by altering the condition is not adopted.
In the scene where creditor A obtained a judgment in his favor but did not distinguish between whether it was served on debtor B and whether an execution clause was needed, the status of service and finality is unconfirmed. Therefore, on the current records alone, it cannot be determined whether the judgment was already served or served at the same time. Nor is it settled whether it is a judgment to which a certificate of proof of a condition is attached, or whether the execution is one for or against a successor. Where the type of the enforceable title or the status of service and finality is unconfirmed, the possibility of commencing compulsory execution remains undetermined. This does not mean that relief is impossible, but only that on the facts of this scene alone one can say neither that the requirements of the relevant text are satisfied nor that they are not.
The boundaries of this section are as follows. The text alone is used as the basis for determining the commencement of compulsory execution, and is not extended to the reasons for judgment. Substituting the fact of holding an authenticated copy for the determination that the service requirement is satisfied is not permitted, and the commencement of execution is bound to the conditions of the text, namely the indication of names and service of the judgment. This does not mean that possession of an authenticated copy of the judgment is meaningless; it merely does not substitute for service.
5.10Fine Distinctions Within the Stage
승계집행문의 요건과 집행 당사자의 표시를 연결해야 한다는 점을 전제로, 정본을 갖추면 통지 없이 집행할 수 있는가라는 물음은 아직 남는다. 판결정본을 손에 넣었다는 사실 자체가 곧 개시 요건을 모두 채웠다는 뜻인지, 아니면 별도로 확인해야 할 조건이 남는지가 쟁점이 된다.
민사집행법 제39조는 집행개시의 요건을 문언으로 정해 둔다. 이 문언은 주체를 신청한 사람과 집행을 받을 사람으로 특정하고, 행위를 성명의 표시와 판결의 송달로 나누며, 시점은 이미 송달하거나 동시에 송달할 때를 든다. 조문의 다른 항이 다루는 별도 쟁점은 이 문단의 설명 대상이 아니다.
정본 보유는 문서를 가진 상태를 말하고, 송달 요건 충족은 문서가 상대방에게 전달된 상태를 말한다. 강제집행의 개시 안에서의 세부 구분은 작동하는 경우·막히는 경우·미확정인 경우의 세 조건에 한정한다. 권원 종류에 맞는 확정 또는 가집행·정본·집행문·조건 증명·송달을 갖춘 경우에 개시는 작동한다.
가장 강한 반론은 통지가 재산 은닉의 기회를 줄 수 있다는 점에서 출발한다. 형식적 서류가 이미 확인된 권리를 다시 지연시킬 수 있다는 우려도 같은 방향을 겨눈다. 송달이 먼저 이루어지는 동안 채무자가 재산을 빼돌리면 집행의 실효가 줄어들고, 이미 승소 판결로 확인된 권리를 지연하는 불편도 남는다. 반론이 지적한 손실과 불편은 그대로 남기되, 문언이 정한 선행 또는 동시 송달의 조건을 무르는 방식으로는 답하지 않는다.
합성 장면을 이 물음에 맞추어 보면, A는 승소판결을 받았고 B에 대한 송달 여부와 집행문 필요 여부를 구별하지 않았다. 이 사실만으로 송달이 있었는지, 확정 또는 가집행 표시가 붙었는지, 집행문이 발급되었는지는 확인되지 않는다. 기록으로 대조할 판정 자료는 판결 정본·확정 또는 가집행 표시·집행문·조건 증명서·송달증명이다. 권원 종류나 송달·확정 상태가 확인되지 않은 경우는 미확정으로 남는다. 이 절은 그 자료가 모였는지 여부를 확정하지 못하며, 확정 전에 개시 가능을 단정하지 않는다.
이 절에서 허용되는 결론은 개시 요건의 세 조건을 기준으로 나눈 판단뿐이다. 가집행 없는 미확정 판결만 있거나 필요한 집행문·조건 증명·송달이 갖추어지지 않은 경우 개시는 막힌다. 만약 권원이 일반 판결에서 이행권고 등 특례 권원으로 바뀌는 것으로 확인되면 같은 집행문 규칙을 그대로 적용하지 않는다. 반면 자료가 모자란 상태를 곧바로 구제 불능으로 읽는 것은 이 절의 결론이 아니다.
5.11Synthesis of Effectiveness, Blockage, and Undetermination
승계집행문의 요건과 집행 당사자의 표시를 연결해야 한다는 전제 아래, 이제 강제집행의 개시에 이르는 절차를 묻는다. 앞 절의 결론은 그대로 두고, 정본을 갖추면 통지 없이 집행할 수 있는가라는 물음만을 붙잡는다. 특히 집행의 개시가 열리고, 막히고, 확인되지 않는 세 경우를 어떻게 구별할 것인지가 남는다.
민사집행법 제39조는 집행개시의 요건을 정하면서, 제1항에서 “①강제집행은 이를 신청한 사람과 집행을 받을 사람의 성명이 판결이나 이에 덧붙여 적은 집행문에 표시되어 있고 판결을 이미 송달하였거나 동시에 송달한 때에만 개시할 수 있다.”라고 말한다. 이 문언은 신청인과 피집행인의 성명이 표시된 판결 또는 집행문, 그리고 선행 또는 동시의 송달을 함께 요구한다. 송달이란 여기서 집행의 기초와 관련된 문서를 알리는 법정 전달을 가리키며, 집행개시 송달로 부른다. 정본 보유만으로는 대체되지 않는다.
같은 조문의 제2항은 “②판결의 집행이 그 취지에 따라 채권자가 증명할 사실에 매인 때 또는 판결에 표시된 채권자의 승계인을 위하여 하는 것이거나 판결에 표시된 채무자의 승계인에 대하여 하는 것일 때에는 집행할 판결 외에, 이에 덧붙여 적은 집행문을 강제집행을 개시하기 전에 채무자의 승계인에게 송달하여야 한다.”(민사집행법 제39조)고 하여, 조건부 급부나 당사자 승계에는 추가 송달을 따로 두고, 제3항은 증명서에 의한 집행문 발급 시 그 등본의 송달을 요구한다. 이에 따라 열리는 조건은 권원 종류에 맞는 확정 또는 가집행·정본·집행문·조건 증명·송달을 모두 갖춘 경우다. 막히는 조건은 가집행 없는 미확정 판결만 있거나 필요한 집행문·조건 증명·송달이 갖추어지지 않은 경우로, 송달 요건은 표시 요건과 구별된다.
통지가 재산 은닉의 기회를 줄 수 있다는 반론은, 송달로 집행 계획이 채무자에게 미리 알려져 재산이 빠져나갈 수 있다는 손실을 겨냥한다. 이 손실은 부정할 수 없으며, 통지의 시점이 주는 불편도 남는다. 집행개시 송달은 채무자가 집행의 기초를 알고 다툴 수 있게 하는 법정 전달이므로, 정본의 보유는 그 전달 자체를 대신하지 못한다. 제39조가 성명 표시와 송달을 나란히 요구하는 것도 같은 이유다.
이 장면만으로는 B에 대한 송달 여부, 확정이나 가집행 표시의 유무, 집행문과 조건 증명서의 필요가 모두 확인되지 않는다. 따라서 현재 판단은 열림이 아니라 미확정에 가깝다. 권원의 종류나 송달·확정 상태가 확인되지 않은 경우는 열린 것으로도 막힌 것으로도 단정하지 않고 미확정으로 남긴다. 다만 일반 판결에서 이행권고 등 특례 권원으로 바뀌면 같은 집행문 규칙을 그대로 적용하지 않으며, 연도·금액·기산일은 정해지지 않았다.
이 절이 허용하는 것은 송달과 표시 요건이 모두 갖추어졌을 때의 개시일 뿐이고, 판결정본 보유만으로 개시가 열린다고 보는 것은 허용되지 않는다. 실제 송달·이행 결과와 집행문의 필요 여부는 이 장면에서 확정할 수 없다. 남은 사정이 확인될 때까지 개시의 실효·차단·미확정은 구분되고, 법적 통로의 개방은 실제 회수의 성과와 다르다.
5.12Conclusion Carried Over to the Next Section
권원 종류에 맞는 확정 또는 가집행·정본·집행문·조건 증명·송달을 갖춘 경우에는 작동하고, 가집행 없는 미확정 판결만 있거나 필요한 집행문·조건 증명·송달이 갖추어지지 않은 경우에는 막히며, 권원의 종류나 송달·확정 상태가 확인되지 않은 경우에는 미확정으로 남는다는 앞 절의 결론을 받아, 이번 물음은 정본을 갖추면 통지 없이 집행할 수 있는가 하는 점이다.
이 물음에 답하기 위하여 관련 법문을 보면, 민사집행법 제39조 제1항은 "강제집행은 이를 신청한 사람과 집행을 받을 사람의 성명이 판결이나 이에 덧붙여 적은 집행문에 표시되어 있고 판결을 이미 송달하였거나 동시에 송달한 때에만 개시할 수 있다"고 규정한다(민사집행법 제39조). 이 문언은 강제집행의 신청인과 피집행인의 성명이 판결 또는 집행문에 표시되어 있고, 판결이 이미 송달되거나 집행 개시와 동시에 송달된 때를 개시의 요건으로 삼는다.
같은 조 제2항은 조건 있는 급부 판결과 승계인에 대한 집행에서 추가로 송달할 문서를 특정한다. 판결의 집행이 채권자가 증명할 사실에 매인 때, 또는 판결에 표시된 채권자의 승계인을 위하여 하거나 채무자의 승계인에 대하여 하는 때에는 집행할 판결 외에 이에 덧붙여 적은 집행문을 강제집행을 개시하기 전에 채무자의 승계인에게 송달하여야 한다(민사집행법 제39조). 제3항은 증명서에 의하여 집행문을 내어 준 때에는 그 증명서의 등본을 강제집행을 개시하기 전에 채무자에게 송달하거나 강제집행과 동시에 송달하여야 한다고 정한다. 이 사정에서 선행 또는 동시 송달과 조건·승계에 따른 추가 송달은 서로 다른 단계에 속하는 요건이다. 전자는 집행의 개시 자체가 가능하기 위한 기준이고, 후자는 조건 증명이나 승계가 관련된 집행에서 추가로 전달할 문서와 시점을 정한다. 정본의 보유는 문서를 가진 사실이고, 송달은 그 문서를 상대방에게 법정의 방식으로 알린 사실이다.
가장 설득력 있는 반론은 통지가 재산 은닉의 기회를 줄 수 있다는 점에서 출발한다. 채무자 B에게 집행의 기초가 미리 알려지면 재산을 빼돌릴 여지가 생길 수 있다는 걱정은, 형식적 서류가 이미 확인된 권리를 다시 지연시킬 수 있다는 걱정과 이어진다. 그러나 이 반론은 송달의 시기와 방식을 다룰 때 작동할 수 있는 걱정이지, 송달 요건 자체를 지우는 근거가 되지는 않는다. 제39조 제1항은 송달을 개시의 요건으로 두면서 시점으로서 이미 송달한 때와 동시에 송달한 때를 함께 허용한다. 송달이라는 개시 조건은 집행의 기초와 관련 문서를 알리는 법정 전달을 뜻하며, 여기에는 집행문과 함께 첨부되는 조건 증명서의 등본도 포함될 수 있다. 따라서 통지에 따른 불이익이 크다는 사정은 제3항이 정한 시점 선택의 문제로 다루어질 수 있을지언정, 정본 보유를 송달의 충족으로 바꾸는 논거가 되지는 못한다.
A와 B의 관계에 놓인 사실 가운데 이 물음에 걸리는 것은 채권자 A가 승소판결을 받았고 채무자 B에게 송달되었는지를 구별하지 않았다는 점이며, 집행문이 필요한지도 함께 정리하지 않았다는 점이다. 이 기록과 앞의 조건을 대조하면, B에게 송달된 사실이 확인되는지 여부는 현재 자료로 정해진 바 없다. 가집행 표시의 유무, 확정 여부, 집행문 부여의 필요, 조건 증명서의 발급 여부 역시 확인된 기록이 없다. 그래서 B에 대한 송달이 있었는지는 미확정으로 남는다. 다만 이 미확정은 판결정본 보유만으로 송달 요건이 충족된다는 뜻으로 이어지지 않는다. 권원의 종류나 송달·확정 상태가 확인되지 않은 경우에는 강제집행의 개시가 작동하는지 판단을 유보할 뿐이며, 송달 요건이 소급하여 충족되는 것은 아니다.
이 절이 허용하는 결론은, 판결의 선행 또는 동시 송달과 조건·승계에 따른 추가 송달 규칙을 집행개시의 요건으로 적용한다는 것이다. 허용되지 않는 결론은, 정본을 확보한 것만으로 B에 대한 통지를 생략하거나 송달 요건이 갖추어졌다고 보는 것이다. 확정 또는 가집행·정본·집행문·조건 증명·송달이 갖추어진 때와 갖추어지지 않은 때, 확인되지 않은 때를 구분한 앞 절의 기준은, 판결정본 보유를 송달 요건 충족으로 바꾸지 않는 범위에서 이 물음의 답이다. 집행개시 송달이 집행의 기초와 관련 문서를 알리는 법정 전달인지, 권원 종류와 무관하게 같은 기준이 적용되는지는 여기까지 넘겨진다. 법원의 판결이 없으면 집행도 불가능한가?