Summary
This chapter separately examines the requirements of other enforcement titles, such as a final and conclusive payment order and a statutory notarial deed containing consent to execution.
6.1The Standard by Which the Path Opens
If one looks only for something bearing the name judgment, one may miss the door of execution that has already opened. The foregoing carries over the premise that prior or simultaneous service of the judgment, and the additional service rules under conditions and succession, are applied. Here the scene is one in which Creditor A obtained a judgment in A's favor, but whether it was served on Debtor B and whether an execution clause is required have not been distinguished. On that scene, the question is whether the entrance to execution may open even by a document other than a judgment, and what the criteria are by which that pathway opens. For a gaze that looks only for judgments may cause one to overlook the pathway already prepared.
The provision pointing to the document that serves as the basis of execution is Article 56 of the Civil Execution Act, whose text declares that compulsory execution "may also be carried out on the basis of any one of the following." The list proceeds through a ruling against which only an appeal against a ruling is available, a ruling on which a declaration of provisional execution has been made, a payment order that has become final and conclusive, a notarial deed stating that the debtor has consented to compulsory execution, and a court settlement in litigation, an acknowledgment of a claim, and the like, which have the same effect as a final and conclusive judgment (Article 56 of the Civil Execution Act). The actor designated by this text is a creditor who holds a document serving as the basis of execution, the act is the carrying out of compulsory execution, and the condition is the existence of a document falling within the list.
This provision serves as the basis for the conclusion that execution is possible even without a judgment. However, quite apart from whether a judgment exists, "other enforcement titles" means documents other than a judgment that the law recognizes as a basis for execution. This definition does not mean that any document whatever can take the place of a judgment, but presupposes a distinction by which only the kinds of documents separately designated by law can fill that place. A payment order that has become final and conclusive and a statutory notarial deed containing consent to compulsory execution each have their requirements separately prescribed, so the standards of finality or the marking of provisional execution required for a judgment cannot be transplanted onto them as they stand. The entrance to this relief opens where, befitting the type of enforcement title, one holds finality or provisional execution, a certified copy, an execution clause, a certificate of conditions, and service.
The objection that there may be debtors who did not understand the meaning of a notarial deed touches on the inconvenience that formal documents may once again delay a right already confirmed. Even if a debtor signed a written agreement while misunderstanding its nature, if the debtor must later bear the result that property is attached on the strength of that document alone, the form of the document is placed ahead of the substantive agreement. Even so, not every notarial document can be converted into a statutory notarial deed containing consent to compulsory execution. Among notarial documents, this item applies only where the document concerns a claim for payment of a certain amount of money or delivery of a certain quantity of substitute articles or negotiable instruments and states the debtor's consent to compulsory execution; other notarial documents must be handled as separate enforcement titles. This limitation shows that, while not erasing the loss the objection points to, the provision cannot be extended beyond the range it prescribes.
In this scene, Creditor A obtained a judgment in A's favor, and whether it was served on Debtor B and whether an execution clause is required have not yet been distinguished. From this fact alone, the type of enforcement title and the state of service and finality cannot be confirmed, and so whether this pathway of relief has opened remains undetermined. Whether a certified copy of the judgment, an indication of finality or provisional execution, an execution clause, a certificate of conditions, or a certificate of service is needed varies according to the type of enforcement title. Where there is only a non-final judgment without provisional execution, or where the required execution clause, certificate of conditions, or service is not in place, the pathway is closed. Conversely, where an ordinary judgment is transformed into a special enforcement title such as a recommendation of performance, the same execution clause rules are not applied as they stand.
The conclusion of this section is this: even without a judgment, where the other enforcement titles prescribed by law are held, and where, befitting the type of enforcement title, finality or provisional execution, a certified copy, an execution clause, a certificate of conditions, and service are in place, and where the required performance, parties, and conditions are specified in the prayer for relief and the right of the chosen form of action can be defended, the entrance to execution opens. Conversely, the mere fact that the name judgment is attached does not mean the pathway opens at once, nor does the mere fact that the documents are formally complete mean the opposing party's opportunity for defense is foreclosed.
6.2The Conditions That Block Relief
Creditor A obtained a judgment in A's favor, but whether it was served on Debtor B and whether an execution clause is required were not distinguished. In the preceding stage, A already confirmed the service rules, but whether those rules carry over unchanged is distinct from the question of this stage. What must now be addressed is whether execution is possible even where there is no judgment, and under what conditions the door to execution closes. The requirements of other enforcement titles, such as a payment order that has become final and conclusive and a statutory notarial deed containing consent to compulsory execution, are examined separately. This question remains at the stage of the commencement of execution.
Article 56 of the Civil Execution Act provides: "Article 56 (Other Enforcement Titles) Compulsory execution may also be carried out on the basis of any one of the following: 1. A ruling against which only an appeal against a ruling is available; 2. A ruling on which a declaration of provisional execution has been made; 3. A payment order that has become final and conclusive; 4. A notarial deed prepared by a notary with respect to a claim for payment of a certain amount of money or delivery of a certain quantity of substitute articles or negotiable instruments, in which the debtor's consent to compulsory execution is stated; 5. A court settlement in litigation, an acknowledgment of a claim, or any other matter having the same effect as a final and conclusive judgment" (Article 56 of the Civil Execution Act). The actor indicated by this text is a creditor seeking to carry out compulsory execution, and the act is the carrying out of compulsory execution on the basis of an enforcement title. The condition is being founded on any one of the five enforcement titles listed.
This provision enumerates a payment order that has become final and conclusive and a notarial deed stating the debtor's consent to compulsory execution as bases of execution. Accordingly, the conclusion does not follow that execution is impossible merely because there is no judgment of the court. Here, "other enforcement titles" means documents other than a judgment that the law recognizes as a basis of execution. However, this text does not mean that any document, by itself, opens execution. A ruling on which a declaration of provisional execution has been made and a payment order that has become final and conclusive are distinguished as separate items, and a notarial deed also falls within the item only where the debtor's consent to compulsory execution is stated. Even if A has obtained nothing but the above judgment, the pathway at the commencement stage diverges according to whether that judgment bears an indication of finality, a declaration of provisional execution, or a certificate of service. If even one of the statutory requirements is not satisfied, the pathway of relief is closed.
There may be debtors who did not understand the meaning of a notarial deed. This inconvenience is substantial. If a debtor unfamiliar with the form and wording of documents suffers delay once more over a right already confirmed, that loss becomes the direct price of setting formal requirements strictly. The text requiring that the debtor's consent be stated in the notarial deed leaves behind the adverse aspect that its effect is applied as it stands even to a person who prepared the document without understanding the meaning and scope of the consent. If all notarial documents were made into enforcement titles for the creditor's convenience, the purpose for which the law separately required the element of consent to compulsory execution would vanish. The adverse part of the objection is left intact while the conclusion is maintained.
As to the judgment A received, what can be confirmed from the records is only the kind of the transcript of the judgment, the indication of finality or provisional execution, the execution clause, the certificate of conditions, or the certificate of service. The facts, service, and performance outcome of an actual case were not designated in the synthetic scene, and the year, amount, date of commencement, and outcome of the judgment were likewise not set. On the present scene, where the finality of the judgment and the state of service are unconfirmed, it cannot be judged whether the stage of commencement of execution has opened. The range permitted by this section is, however, clear. Where there is only a non-final judgment without provisional execution, or where the required execution clause, certificate of conditions, or service is not in place, the conclusion is that if even one of the statutory requirements is not satisfied, the pathway of relief is closed.
The conclusion this section permits is that, even without a judgment, if one is founded on an enforcement title enumerated in Article 56, such as a payment order that has become final and conclusive or a statutory notarial deed containing consent to compulsory execution, compulsory execution may be carried out. The conclusions it does not permit are that execution opens merely because the document is a notarial document, or that execution is possible without confirming the requirements of service, finality, and the execution clause. Items that could not be confirmed for want of materials remain undetermined, and that does not itself mean that no relief is available.
6.3The Boundary That Remains When There Is No Data
In this scene, what A must establish is not whether A prevailed, but the kind of document that will serve as the basis of execution and the state of that document. The question whether execution is impossible without a judgment of the court is placed only upon this distinction.
Article 56 of the Civil Execution Act enumerates in items the point that compulsory execution is not founded solely on a judgment (Article 56 of the Civil Execution Act). According to its text, compulsory execution may also be carried out on the basis of any one of a ruling against which only an appeal against a ruling is available, a ruling on which a declaration of provisional execution has been made, a payment order that has become final and conclusive, a notarial deed for a certain purpose stating that the debtor has consented to compulsory execution, and a court settlement in litigation, an acknowledgment of a claim, and the like, which have the same effect as a final and conclusive judgment. Here the actor is the creditor requesting compulsory execution, the act is the commencement of execution, and the condition is the state in which one of the enumerated documents is in place. What these items indicate is not the name of the judgment document, but the material that serves as the basis of execution.
Linking this text with the determination established above divides the criteria of judgment used at the stage of commencement of compulsory execution. One case is where, befitting the type of enforcement title, finality or provisional execution, a transcript, an execution clause, a certificate of conditions, and service are in place; the other is where there is only a non-final judgment without provisional execution, or where the required execution clause, certificate of conditions, or service is not in place. The former is established where the requirements corresponding to other enforcement titles have been separately prepared according to their type; the latter is a state in which, even though the name judgment has been confirmed, that name alone does not fill the commencement requirements. These two must be separated because the identity of the document in hand and the proof that document requires are different questions.
The strongest objection is aimed at the points that formal documents may once again delay a right already confirmed, and that there may be debtors who did not understand the meaning of a notarial deed. A debtor may lose property through a document prepared without properly knowing the meaning of the signature, and from the creditor's standpoint, though an enforcement title already exists, the document-verification procedure may slow recovery. Distinguishing, among notarial documents, those in which consent to compulsory execution is stated from those in which it is not is a requirement set by the text of this provision; if that distinction were abolished, the same effect would be granted to documents without consent. The inconvenience the objection points to remains, but that inconvenience alone cannot expand the requirement.
Returning to the synthetic scene, A did not distinguish whether service took place from whether an execution clause is needed, which means that A never determined what is required among an indication of finality or provisional execution, an execution clause, a certificate of conditions, and a certificate of service. The facts placed on this scene amount to this single line alone, and it is not stated whether A's enforcement title is a judgment, a payment order that has become final and conclusive, or a notarial deed with consent to compulsory execution. Where the type of enforcement title or the state of service and finality is unconfirmed, that is, where the material to be used for judgment is unspecified, such matters are not placed under the conclusion that execution is impossible but are separately left undetermined. Here, the absence of materials does not mean the pathway of relief is closed, but that with no confirmed materials no judgment in either direction can be rendered.
The conclusion this section permits is not to regard execution as impossible merely for lack of the name judgment, but to examine separately the requirements of the other enumerated enforcement titles according to their type, and then to leave the remaining gaps undetermined. The conclusions it does not permit are to convert an unconfirmed state immediately into an impossibility, and to elevate all notarial documents into statutory notarial deeds containing consent to compulsory execution.
6.4The Records Needed for Determination
On the premise that prior or simultaneous service of the judgment, and the additional service rules under conditions and succession, are applied, the question whether execution is impossible without a judgment of the court is now moved to the dimension of the records. To judge the stage, which records are needed?
Article 56 of the Civil Execution Act provides that "compulsory execution may also be carried out on the basis of any one of the following," and lists as one of them "a notarial deed prepared by a notary with respect to a claim for payment of a certain amount of money or delivery of a certain quantity of substitute articles or negotiable instruments, in which the debtor's consent to compulsory execution is stated." This text fixes the actor as the notary, the act as the preparation of a notarial deed concerning a claim for delivery of a certain amount of money, substitute articles, or negotiable instruments, and the condition as the statement of the debtor's consent to compulsory execution (Article 56 of the Civil Execution Act). What the text requires is whether the document has been prepared and the statement of consent within it; the mere fact that the document has undergone notarization does not place it within this list.
To make a stage determination on the basis of that provision, one considers only the materials recorded in the transcript of the judgment, the indication of finality or provisional execution, the execution clause, the certificate of conditions, and the certificate of service. The reason the transcript of the judgment and the indication of finality or provisional execution are different records is that the one shows that the document serves as the basis of execution, and the other shows whether that basis is in a state that can actually open execution. The distinction likewise holds on the same logic: where there is only a non-final judgment without provisional execution, or where the required execution clause, certificate of conditions, or service is not in place, the commencement of compulsory execution is barred. The stage determination is made on the established records alone, and absent records are not filled in by conjecture.
The strongest objection is aimed at the point that formal documents may once again delay a right already confirmed. A debtor who did not understand the meaning of a notarial deed may have signed without grasping what the statement of consent signifies, and if compulsory execution opens on that signature alone, the disadvantage is heavy. For that substitution would replace the condition of the statement of consent set by the text with the mere fact of the document's preparation, thereby erasing the boundary Article 56, subparagraph 4 has drawn between it and other notarial deeds (Article 56 of the Civil Execution Act).
Returning to the synthetic scene and comparing only the facts belonging to this question, the mere fact that A obtained a judgment in A's favor does not fix which stage is at hand. What is recorded among the transcript of the judgment, the indication of finality or provisional execution, the execution clause, the certificate of conditions, and the certificate of service, and whether it was served on Debtor B, are not confirmed on this scene. Where the type of enforcement title or the state of service and finality is unconfirmed, that stage remains undetermined. That the same judgment, if transformed from an ordinary judgment into a special enforcement title such as a recommendation of performance, does not have the same execution clause rules applied to it as they stand is only a comparison that changes the conditions, not a fact occurring on this scene.
What this section permits is the determination of the stage on the established records alone, leaving absent records undetermined; it does not permit the conclusion that execution is impossible because there is no judgment, nor the conclusion that the door to execution opens on the form of the document alone. The requirements of other enforcement titles, such as a payment order that has become final and conclusive and a statutory notarial deed containing consent to compulsory execution, are examined separately for each item prescribed in Article 56 (Article 56 of the Civil Execution Act). This section, however, addresses the record requirements and does not establish the results of recovery or performance.
6.5Circumstances That Change the Decision
Is execution also impossible if there is no court judgment? The previous section took the view that this determination rests on a certified copy of the judgment, an indication of finality or provisional execution, a certificate of execution, a certificate of proof of conditions, and proof of service, and that if those records are absent, the conclusion remains undetermined. On the premise of precisely this distinction, the present question is what circumstances would overturn the preceding determination. This is why the requirements of other enforcement titles, such as a final and conclusive payment order or a statutory notarial deed with consent to compulsory execution, must be examined separately.
In this text, the acts of the subject on which compulsory execution is based are each separately divided up: the pronouncement of a ruling on an appeal against a ruling, a declaration of provisional execution, the finality of a payment order, the drawing up of a notarial deed and the entry of consent to compulsory execution, and the like.
The language of this provision is read in the same direction as the conclusion of the previous section. Even in the same compulsory execution, the conditions to be satisfied differ depending on what the underlying document is, so the single rule on the certificate of execution cannot be applied as it stands to the document as a whole. Two stages of distinction lie here. The first is to determine the type of enforcement title on which execution is based; the second is to examine whether the finality or provisional execution, the certified copy, the certificate of execution, the proof of conditions, and the service suited to that title have been furnished. The conclusion of this section—that when an ordinary judgment is replaced by a special enforcement title such as a recommendation of performance, the same rule on the certificate of execution is not applied as it stands—follows from the fact that the latter stage presupposes the former.
This distinction, however, is attended by harm. The strongest counterargument is that there may be a debtor who does not understand the meaning of a notarial deed. If the door to compulsory execution opens on the strength of a document drawn up merely in form, a debtor who cannot read what that document means may face unexpected execution. This is not a mere documentary inconvenience; being in a state of not knowing on what basis one's own property is attached, it is closer to a substantive loss. What Article 56, subparagraph 4 requires is a notarial deed drawn up by a notary concerning a claim aimed at the payment of a certain amount or the delivery of a certain quantity of substitutes or negotiable instruments, and within it a statement to the effect that the debtor accepts compulsory execution must be entered. If this requirement were imposed on every notarized document, the result would be to draw in at once documents beyond the scope recognized by the provision.
In the synthetic scene, creditor A has obtained a favorable judgment, while whether it was served on debtor B and whether a certificate of execution is needed have not yet been determined. On this fact alone it is not settled whether the case falls within that of an ordinary judgment or within another enforcement title under Article 56, such as a final and conclusive payment order or a notarial deed with acceptance of compulsory execution. Unless the type of enforcement title is confirmed, which rule applies is likewise undetermined. Thus, with respect to the same scene, one can neither assert that the door to execution has opened nor assert that it has closed. When the designated records—a certified copy of the judgment, an indication of finality or provisional execution, a certificate of execution, a certificate of proof of conditions, and proof of service—are gathered together, a determination suited to the type of enforcement title becomes possible at the stage of commencement. If those records do not come together, the conclusion remains undetermined, which is not the same as saying that relief is impossible.
The conclusion this section permits is narrow. One must not hold that a document other than a judgment cannot serve as the basis of execution, nor, conversely, treat any notarized document as a notarial deed with acceptance of compulsory execution. If the type of enforcement title changes, the conditions to be followed change with it, and that change is a circumstance capable of overturning the determination. Filling in the items that remain undetermined with conjecture is not permitted.
6.6The Strongest Counterargument and the Answer
That conclusion had confirmed the premise that the rules on prior or contemporaneous service of the judgment and on additional service under conditions and succession are applied. If one searches only for the name of a judgment, one may miss the door of execution that has already opened. The question here is whether the circumstance that there may be a debtor who does not understand the meaning of a notarial deed can narrow the scope in which other enforcement titles are recognized.
Other enforcement titles mean documents that the law recognizes as a basis for execution besides judgments. Article 56 of the Civil Execution Act enumerates as documents that may serve as the basis of compulsory execution: a ruling which may be contested only by appeal against a ruling; a ruling in which a declaration of provisional execution has been rendered; a final and conclusive payment order; a notarial deed drawn up by a notary concerning a claim aimed at the payment of a certain amount or the delivery of a certain quantity of substitutes or negotiable instruments, in which a statement to the effect that the debtor accepts compulsory execution is entered; judicial settlement in litigation and acknowledgment of a claim; and the like. In the case of a notarial deed, this language requires together the requirements of drawing up by a notary, the relation to a claim aimed at a certain amount, substitutes, or a quantity of negotiable instruments, and the debtor's acceptance of compulsory execution. On the author's application, these requirements are not satisfied merely by the documentary form of a notarial deed.
Listing the requirements of Article 56 and determining whether the document becomes a basis for execution are distinct stages. What the author distinguishes is the existence of the document called a notarial deed and the requirement that within that document a statement to the effect that the debtor accepts compulsory execution be entered. Even the same notarized document, if it does not contain a statement accepting compulsory execution, does not correspond to the notarial deed of Article 56, subparagraph 4. Leaving intact the distinction between service and the certificate of execution confirmed in the previous section, this section examines whether the threshold of the same execution procedure can be crossed only after the type of enforcement title has been determined. This determination, however, is the author's distinction based on the language of Article 56, and does not describe the whole of the requirements as fixed by judicial holdings.
The counterargument that there may be a debtor who does not understand the meaning of a notarial deed aims at the inconvenience that a document may again delay a right already confirmed. Even if the debtor signed without understanding the meaning of the document, it is said, if the requirements of the content of that document are not inquired into, the door of execution that has already opened may be narrowed. The loss this counterargument points to is real. But the author's answer is that not all notarized documents can be changed into notarial deeds with acceptance of compulsory execution. Whether a notarized document contains the meaning of acceptance of compulsory execution is a matter to be determined according to the language of each document, and documents without such language cannot be drawn in as notarial deeds and made the basis of execution. The inconvenience the counterargument notes remains, but that inconvenience alone does not eliminate the requirement.
The fact confirmed in this scene is only that whether service took place and the need for a certificate of execution were not distinguished, and whether a notarial deed was drawn up, and if it was, whether a statement to the effect that the debtor accepts compulsory execution is entered in it, is undetermined. Accordingly, on this scene alone one cannot assert that the requirements of Article 56, subparagraph 4 have been satisfied or that they have not been satisfied. If it is confirmed that the enforcement title has changed from an ordinary judgment to a special enforcement title such as a recommendation of performance, the same rule on the certificate of execution is not applied as it stands, but that circumstance alone cannot determine in this scene the presence or absence of the requirements for a notarial deed.
The conclusion this section permits is narrow: from the mere circumstance that there is a debtor who does not understand the meaning of a notarial deed, not all notarized documents can be changed into notarial deeds with acceptance of compulsory execution. A notarial deed is, besides a judgment, another enforcement title that the law recognizes as a basis for execution, and the requirement that a statement to the effect that the debtor accepts compulsory execution be entered within that document is examined separately. This conclusion, however, does not declare that the debtor's understanding is meaningless in legal judgment.
6.7The Link to the Application and the Dispositive Part
Following the conclusion of the previous section that not all notarized documents can be changed into notarial deeds with acceptance of compulsory execution, there is now placed the question whether execution is also impossible if there is no court judgment. In this scene, what is at issue is whether a document other than a judgment can become the basis of execution.
Article 56 of the Civil Execution Act declares, "Article 56 (Other Enforcement Titles) Compulsory execution may also be carried out on the basis of any one of the following," and then lists among them "3. A final and conclusive payment order" and "4. A notarial deed drawn up by a notary concerning a claim aimed at the payment of a certain amount or the delivery of a certain quantity of substitutes or negotiable instruments, in which a statement to the effect that the debtor accepts compulsory execution is entered." In this text, the subject and the act on which compulsory execution is based are not limited to court judgments; a ruling which may be contested only by appeal against a ruling, a ruling in which a declaration of provisional execution has been rendered, judicial settlement in litigation and acknowledgment of a claim, and the like—things having the same effect as a final and conclusive judgment—are together enumerated.
This basis and the conclusion of this section lead to the judgment that the requirements of other enforcement titles, such as a final and conclusive payment order or a notarial deed with acceptance of compulsory execution, are examined separately. The reason the stage of asking whether the judgment has become final and conclusive must be distinguished from the stage of asking the requirements that another enforcement title must itself satisfy is that the route by which each document is recognized as a basis for execution differs. For a final and conclusive payment order, its finality itself; for a notarial deed containing a statement of acceptance, the claim for which it was drawn up and the debtor's acceptance of compulsory execution, are each presented as requirements.
This counterargument aims at the inconvenience that formal documentary verification again delays a right already confirmed, and at the harm that a person who does not know the meaning of the document may have to bear the consequences of acceptance. The language specifying that among notarial deeds those which become a basis for execution are limited to those drawn up concerning a claim aimed at the payment of a certain amount or the delivery of a certain quantity of substitutes or negotiable instruments, and in which the debtor's acceptance of compulsory execution is entered, leaves that scope exactly as it stands.
In the scene where creditor A obtained a favorable judgment but whether it was served on debtor B and whether a certificate of execution is needed were not distinguished, the fact relevant to this question is only that the document A obtained is a judgment. Which of the certified copy of the judgment, the indication of finality or provisional execution, the certificate of execution, the certificate of proof of conditions, and the proof of service has been furnished, and whether it was served on B, have not been confirmed. Accordingly, the commencement of compulsory execution operates where the finality or provisional execution, certified copy, certificate of execution, proof of conditions, and service suited to the type of enforcement title have been furnished; it is blocked where there is only a non-final judgment without provisional execution, or where the necessary certificate of execution, proof of conditions, or service has not been furnished.
The conclusion this section permits is that even without a court judgment, enforcement titles other than a judgment, such as a final and conclusive payment order or a notarial deed in which acceptance of compulsory execution is entered, can become the basis of execution if they meet the requirements; what it does not permit is the expansion whereby any notarized document whatsoever passes through that door.
6.8The Scope This Section Undertakes
The previous section had reached the conclusion that the requirements of other enforcement titles, such as a final and conclusive payment order or a notarial deed with acceptance of compulsory execution, are examined separately. The question whether execution is also impossible if there is no court judgment, however, is put in order only at the place of asking whether documents other than a judgment can become the basis of execution, while leaving intact the rules on service confirmed above. This question is a problem that asks the range of documents that can become the basis of execution, apart from whether the judgment has become final and conclusive.
The text answering this question is found in Article 56 of the Civil Execution Act. That text, after declaring that compulsory execution may also be carried out on the basis of any one of the following, enumerates in order: a ruling which may be contested only by appeal against a ruling; a ruling in which a declaration of provisional execution has been rendered; a final and conclusive payment order; a notarial deed in which a statement to the effect that the debtor accepts compulsory execution is entered; judicial settlement in litigation or acknowledgment of a claim, and the like, which have the same effect as a final and conclusive judgment (Article 56 of the Civil Execution Act). In this list, the subject is the creditor seeking to carry out compulsory execution, the act is the carrying out of compulsory execution, and the condition is that the document serving as its basis falls under any one item on the list.
This language connects with the earlier conclusion that the door of execution cannot be found by the name of judgment alone. The premise the previous section imposed on judgments, requiring service and a certificate of execution, set in order the procedural requirements needed when a judgment is taken as the basis of execution. Yet since Article 56 places other kinds of documents alongside upon that premise, the requirements of service and certificate of execution for a judgment and the requirements of other titles are each determined separately along their own axes. A final and conclusive payment order is required to meet the requirement of finality, and a notarial deed with acceptance of compulsory execution is required to contain the debtor's statement of acceptance; accordingly, the matter is not concluded by simply transferring and attaching the proof of service and the certificate of execution required of a judgment.
Such harm to the debtor is in fact impossible to disregard, and the inconvenience remains that formal documents again delay a right already confirmed. Since the language specifies that among documents drawn up by a notary only those in which a statement of acceptance of compulsory execution is entered fall under the fourth item of this list, widening this to all notarized documents would erase the distinction of requirements set by the language. The lack of understanding at which the counterargument aims is a matter to be governed by explaining the requirements; it cannot serve as grounds for erasing the requirement itself.
In the synthetic scene, only the fact is confirmed that creditor A did not distinguish whether it was served on debtor B and whether a certificate of execution is needed. Which of the five items set out in Article 56 corresponds to A's document is not determined by this scene alone. Whether service of the judgment took place, whether there was a declaration of provisional execution, and on which document B accepted compulsory execution are also unconfirmed. Accordingly, where neither the type of enforcement title nor the state of service or finality is confirmed, the commencement of compulsory execution cannot be determined, and this is left as an unresolved matter. The contrast—that when an ordinary judgment is replaced by a special enforcement title such as a recommendation of performance, the same rule on the certificate of execution is not applied as it stands—is read only within the distinction between judgments and other titles that this section now undertakes.
Accordingly, the conclusion this section permits is that whether execution is possible without a judgment is determined separately according to the requirements for enforcement titles other than judgments; the conclusion it does not permit is to hold that any notarized document whatsoever satisfies those requirements. The premises of service and the certificate of execution remain as the framework for determinations concerning judgments, and upon that framework the requirements of other titles are examined along a separate axis. The circumstance that the material is insufficient remains in the state of being unconfirmed, not of requirements being unmet. How does the language of Article 56 of the Civil Execution Act support this conclusion?
6.9Application of the Text of the Provisions and the Holdings of Precedents
It was held that the rule of prior or simultaneous service of the judgment, and of additional service under conditions and succession, applies. Within this flow, the present question asks whether the commencement of compulsory execution can be determined on the basis of the single favorable judgment that Creditor A has received. If one relies only on the name of the judgment without distinguishing whether it was served on Debtor B and whether an execution clause is required, one misses the path of execution already open to documents other than judgments that possess the requisite qualifications. This question begins with what is required of documents that the law recognizes as the basis for execution other than judgments, that is, other enforcement titles.
Article 56 of the Civil Execution Act bears the heading "Other Enforcement Titles" and opens with the provision: "Compulsory execution may also be carried out on the basis of any of the following." The subject of this provision is the enforcement agency carrying out compulsory execution; the act is the carrying out of compulsory execution on the basis of an enforcement title; and the condition is the case of a document based on any one of the enumerated qualifications. Article 56 places at the head of the enumeration "a ruling against which the only remedy is an appeal against a ruling," and follows it with "a judgment on which a declaration of provisional execution has been rendered" (Article 56 of the Civil Execution Act). This provision enumerates together a final and conclusive payment order and a notarial deed containing consent to execution, and a settlement or acknowledgment having the same effect as a final and conclusive judgment. However, since this provision does not set out in detail the entirety of the requirements for each enumerated item, this section goes no further than presenting the wording of the enumeration and the qualifications that the wording indicates.
Only by reading this provision in terms of two stages of determination is the commencement of compulsory execution correctly distinguished. The first stage is to discern from the wording which documents possessing which qualifications are open as the basis for execution, and the second stage is to cross-check whether the requirements for documents falling under that wording are actually furnished. The conclusion of this section, which is taken as the basis for determination, is that whether a document other than a judgment opens the door to execution is read from the enumerated wording of Article 56 and is not extended by the reasons for judgment outside that wording. Even if the name of a judgment as a final and conclusive judgment has been confirmed, whether service or an execution clause is required is decided not by this wording but in a separate record of whether the finality or provisional execution, certified copy, execution clause, proof of conditions, or service appropriate to the type of title has been furnished. If this distinction is blurred, the judgment on the wording of the enumerated qualifications and the judgment on the actually furnished documents are merged into one mass.
A counterargument that there may be a debtor who does not understand the meaning of a notarial deed targets this formal distinction. The requirement that a notarial deed prepared for the purpose of payment of a certain amount of money or delivery of substitute articles or negotiable instruments contain the debtor's consent to compulsory execution leaves irreparable loss for a debtor who could not read the document or grasp its meaning. The inconvenience is also great of delaying, once again by documents, a right already confirmed, and a value is at stake, namely that form may veil substance and that protection of the debtor may waver at the threshold of compulsory execution. That said, not every notarized document can be converted into a statutory notarial deed containing consent to compulsory execution. Unless one separates documents possessing the qualification of the consent stated in the wording and the qualification of the preparing entity and purpose of claim from the rest, the very scope of the basis of execution fixed by the enumerated wording collapses. The disadvantage pointed out by the counterargument is left standing, but that disadvantage alone cannot broaden the qualification of the wording to all notarized documents.
This fact alone does not confirm the type of title or the status of service or finality, and therefore whether compulsory execution commences cannot be determined. If there is only a non-final judgment without provisional execution, or if it is shown that the required execution clause, proof of conditions, or service has not been furnished, the commencement of execution is barred; if a certified copy of the judgment, an indication of finality or provisional execution, an execution clause, a certificate of proof of conditions, and proof of service are furnished, the path matching that qualification opens. Here, if the type of title changes to a final and conclusive payment order or a statutory notarial deed containing consent to execution, the same execution clause rules are not applied as they stand. However, one cannot fabricate a year, amount, commencement date, or result of service absent from the scene and assert which side prevailed. Instead of determining the question of commencement on the basis of the name "judgment" alone, the determination proceeds only by cross-checking the wording of the confirmed qualification against the furnished records.
The conclusion this section permits is narrow. It permits the point that, if a document is based on any one of the qualifications enumerated in the wording of Article 56, the door to compulsory execution may open even without a judgment, and the point that the qualification of that wording is not broadened by the reasons for judgment. What is not permitted is a determination that fixes commencement solely by the name of the judgment received by Creditor A, or that regards the requirement of consent to compulsory execution as satisfied merely by the name "notarial deed." While the records of service, finality, and execution clause are absent, the matter remains undetermined, and the mere fact that there are no materials cannot support the assertion that execution is impossible.
6.10Fine Distinctions Within the Stage
Since the premise accepted in the preceding stage is that the rule of prior or simultaneous service of the judgment, and of additional service under conditions and succession, applies, the question of service of the judgment and the question of the type of enforcement title are different objects of examination. Then, what is the part that must be separately determined within the commencement of compulsory execution? This question is narrowed to separately considering the requirements of other enforcement titles, such as a final and conclusive payment order and a statutory notarial deed containing consent to execution.
The provision corresponding to this question is as follows. Article 56 of the Civil Execution Act opens, "Article 56 (Other Enforcement Titles) Compulsory execution may also be carried out on the basis of any of the following," and gives as one of them "a notarial deed prepared by a notary with respect to a claim whose purpose is payment of a certain amount of money or delivery of a certain quantity of substitute articles or negotiable instruments, in which the debtor's consent to compulsory execution is stated." What is fixed by this wording is that the entity that prepared the document is a notary; that the purpose of the claim for which the document was prepared is payment of a certain amount of money or delivery of a certain quantity of substitute articles or negotiable instruments; and the condition that the document state the debtor's consent to compulsory execution. The Article does not expound all at once the requirements of the other titles contained in the remaining items.
The link joining the above wording and the conclusion of this section is the separateness of the conditions. The stage determined in this section is the commencement of compulsory execution, and the part to be separately determined within it is limited to whether the stated conditions are satisfied. In other words, if the finality or provisional execution, certified copy, execution clause, proof of conditions, or service appropriate to the type of title has been furnished, those commencement conditions are satisfied; if there is only a non-final judgment without provisional execution, or if the required execution clause, proof of conditions, or service has not been furnished, those commencement conditions are barred. This is why the conclusion is not drawn that commencement is impossible merely because there is no court judgment. Because there are separate documents that the law recognizes as the basis for execution, and the requirements to be furnished are separately indicated for each such document.
The disadvantage targeted by this counterargument is clear. It is the concern that a debtor who could not read the character of the document may stand at the threshold of execution, as though a right had already been confirmed, without having been able to assert the absence of consent to execution or the deficiency of the document requirements. The counterargument that formal documents may delay a right already confirmed once again arises in the same direction. The circumstance that the anxiety for the protection of the debtor is great cannot change the examination of whether each notarized document satisfies its requirements; it only justifies the procedure of confirming that the consent stated in the wording is in fact contained.
In the synthetic scene, Creditor A has obtained a judgment in his favor, and this situation does not directly come into contact with the problem of other enforcement titles. However, the fact of the scene that the distinction between whether it was served on Debtor B and whether an execution clause is required was not drawn shows that, depending on whether the object of determination is the status of service and finality or the type of title, the items to be confirmed from the records differ. A certified copy of the judgment, an indication of finality or provisional execution, an execution clause, a certificate of proof of conditions, and proof of service are those confirmation records, and where the type of title or the status of service and finality is unconfirmed, the possibility of commencement cannot be asserted on the basis of this scene alone.
The conclusion this section permits is narrow. It does not assert that the commencement of execution is impossible merely because the name "judgment" is absent, nor does it assert unconditionally that execution is possible merely because the document is one other than a judgment. It only divides the possibility of commencement according to whether the stated conditions are satisfied, and leaves the parts where the conditions remain unconfirmed as undetermined. Even treating the deficiency of the document requirements as an obstacle by which the document delays a right already confirmed does not reverse the conclusion. Without confirming that the consent stated in the wording is in fact contained, all notarized documents cannot be substituted for a single statutory notarial deed.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
The question remaining in this scene is simple. Without a court judgment, is execution also impossible; or can a document other than a judgment also serve as the basis for execution? This question is decided not by the name of the document now in hand but by what that document proves under the law.
The provision answering this question is found in Article 56 of the Civil Execution Act. The heading of this Article is "Other Enforcement Titles," and its wording opens, "Compulsory execution may also be carried out on the basis of any of the following," and gives five kinds. The first three are a ruling against which the only remedy is an appeal against a ruling, a judgment on which a declaration of provisional execution has been rendered, and a final and conclusive payment order; then comes a notarial deed prepared by a notary with respect to a claim whose purpose is payment of a certain amount of money or delivery of a certain quantity of substitute articles or negotiable instruments, in which the debtor's consent to compulsory execution is stated. Finally, a court settlement, an acknowledgment of a claim, and other matters having the same effect as a final and conclusive judgment are enumerated together.
What this enumeration shows is the pairing of subject and condition. In the case of a notarial deed whose preparing entity is a notary, only if the document concerns a claim aimed at a particular purpose and the debtor's consent to compulsory execution is stated does it first become the basis for execution. Placing this definition together with the preceding enumeration, the condition for opening is the case in which one has the finality or provisional execution, certified copy, execution clause, proof of conditions, or service appropriate to the type of title. At this point, why the two stages must be examined separately becomes apparent. Discerning the type of title first and furnishing the proofs and documents attached to that title are distinct determinations and cannot be handled together as one.
The strongest counterargument aims at the point that form delays a right already confirmed. It is also pointed out that there may be a debtor who does not understand the meaning of a notarial deed. A situation in which a debtor stands at the threshold of execution without gauging the weight of the document on which he signed may be substantively disadvantageous, and the formal requirements of a single sheet of document may belatedly hold up the creditor's recovery. The conditions that bar the way remain the cases where there is only a non-final judgment without provisional execution or where the required execution clause, proof of conditions, or service has not been furnished. Without erasing the disadvantage pointed out by the counterargument, arbitrarily broadening the requirements fixed by the Article and raising all notarized documents to the same treatment lies outside this conclusion.
The facts of this scene go no further. There are no materials as to which of the certified copy of the judgment, the indication of finality or provisional execution, the execution clause, the certificate of proof of conditions, and the proof of service is actually prepared, or as to when and how service was effected. This is why undetermined matters must be kept separate where the type of title or the status of service and finality is unconfirmed. Items that cannot be determined from the scene alone remain undetermined, and the fact that there are no materials does not move immediately to the absence of any remedy.
The conclusion this section permits is that where the requirements appropriate to the type of title are furnished, the commencement of compulsory execution opens, and where there is only a non-final judgment without provisional execution or where the required execution clause, proof of conditions, or service has not been furnished, that door is barred. Arbitrarily filling in an unconfirmed type of title or status of service and finality and fixing it as open or barred is not permitted.
6.12이 권의 결론과 남는 물음
Before this section it was summarized that where one has the finality or provisional execution, certified copy, execution clause, proof of conditions, or service appropriate to the type of title it operates, where there is only a non-final judgment without provisional execution or the required execution clause, proof of conditions, or service has not been furnished it is barred, and where the type of title or the status of service and finality is unconfirmed it remains undetermined. It is precisely at this point that a question arises.
To answer this question, the relevant provision is examined first. Article 56 of the Civil Execution Act declares, "Compulsory execution may also be carried out on the basis of any of the following," and then enumerates: "1. A ruling against which the only remedy is an appeal against a ruling; 2. A judgment on which a declaration of provisional execution has been rendered; 3. A final and conclusive payment order; 4. A notarial deed prepared by a notary with respect to a claim whose purpose is payment of a certain amount of money or delivery of a certain quantity of substitute articles or negotiable instruments, in which the debtor's consent to compulsory execution is stated; 5. A court settlement, an acknowledgment of a claim, or anything else having the same effect as a final and conclusive judgment" (Article 56 of the Civil Execution Act). This provision states separately, item by item, the subject, act, and conditions of documents serving as the basis of execution.
What the Article says is clear. Compulsory execution does not rely solely on the single name "final and conclusive judgment"; it does not stop at enforcement titles in the form of judgments, such as a ruling against which the only remedy is an appeal against a ruling or a judgment on which a declaration of provisional execution has been rendered; and a final and conclusive payment order, a statutory notarial deed containing consent to execution, and a settlement or acknowledgment having the same effect as a final and conclusive judgment may each serve as the respective basis. The conclusion that the requirements of other enforcement titles, such as a final and conclusive payment order and a statutory notarial deed containing consent to execution, are examined separately comes from this distinction. Because even for the same execution, when the type of title changes, the documents and proofs required change accordingly to match that type.
One strong counterargument remains. It is the point that there may be a debtor who does not understand the meaning of a notarial deed. Where the debtor signed without reading what the notarized document means, or whether the debtor's consent to compulsory execution is stated in that document, a document possessing only form may delay a right already confirmed once again. This disadvantage cannot be treated lightly. What the Article requires is not a notarial deed as such, but the case of a notarial deed concerning a claim whose purpose is payment of a certain amount of money or delivery of a certain quantity of substitute articles or negotiable instruments, while at the same time containing the debtor's consent to compulsory execution; this constitutes the limit of the answer to the counterargument.
Returning to the synthetic scene, the fact alone that Creditor A has received a judgment in his favor does not immediately determine which title is in hand, or to which item that title corresponds. As set out in the preceding section, where one has the finality or provisional execution, certified copy, execution clause, proof of conditions, or service appropriate to the type of title, the commencement of compulsory execution operates; where there is only a non-final judgment without provisional execution or the required execution clause, proof of conditions, or service has not been furnished, it is barred; and where the type of title or the status of service and finality is unconfirmed, it remains undetermined. However, although the fact is confirmed that Creditor A did not distinguish whether service on Debtor B had been made and whether an execution clause was required, whether service was actually effected and the time of finality are not determined in this scene, and that part is left undetermined.
Accordingly, what this section permits is the attitude of not asserting that execution is impossible merely because there is no court judgment. Each title enumerated in Article 56, such as a final and conclusive payment order, a statutory notarial deed containing consent to execution, and a settlement or acknowledgment having the same effect as a final and conclusive judgment, may serve as the basis for execution when its requirements are separately furnished. Conversely, what this section does not permit is an interpretation that regards all notarized documents or all documents in the form of judgments as enforcement titles having the same effect. The earlier conclusion that the requirements of other enforcement titles, such as a final and conclusive payment order and a statutory notarial deed containing consent to execution, are examined separately is precisely this distinction. What is used to contest a claim that has been extinguished by payment?
Statutes referred to
Questions left open
- At what point do exceptions to the execution clause make matters difficult for the parties to understand?
- How should the cost of failed service be reduced?
- By what record should the gap between acquiring the enforcement title and actual recovery be preserved?