Summary
A third party may file an objection suit against the creditor on the basis of ownership of the subject property or a right to prevent its transfer or delivery.
3.1The Standard by Which the Path Opens
One cannot take away another person's property merely because it is the debtor's debt. This circumstance continues the flow that has thus far distinguished suits contesting enforceability arising from fulfillment of a condition or succession from objections to the claim itself, and now moves the judgment to the side of the owner who is not the debtor. In this scene, debtor B contests on the ground of payment and third party C claims that the attached object is his own, yet the execution continues. This scene is not a reproduction of an actual case but merely a premise to which a judgment is to be attached. Precisely at this point, one must ask how the person who owns the property stops that execution as against his own things, and by what standard the passage open to him is opened.
The text that answers this question is found in Article 48 of the Civil Execution Act. Article 48 (1) states: "Where a third party claims ownership of the object of compulsory execution or claims a right to prevent the transfer or delivery of the object, such third party may file an action for objection to the compulsory execution against the creditor: Provided, that where the debtor contests the objection, the debtor may be joined as a co-defendant." The actor this text points to is the third party who is not the debtor, and what that party asserts is ownership of the object or a right to prevent its transfer or delivery. The act is the filing of an action for objection to the compulsory execution against the creditor, and the condition is the making of that assertion. The proviso merely records together that where the debtor contests the objection, a co-defendant may be joined; it does not settle any other issue.
If this text is joined to the conclusion, the place of adjudication becomes visible. As defined earlier, third-party objection refers to a claim for exclusion based on a third party's right concerning the object of execution, and this claim differs in character from a suit contesting the claim itself. The former takes as its issue whether the requirements for reducing the enforceability have been fulfilled; the latter takes as its issue whether the thing belonged to another from the outset. If both are kept as a single bundle of adjudication, the entrance to this remedy cannot be fixed. The entrance to this remedy opens in the case where an action for objection suited to the contested right, condition, succession, or third-party right has been filed and the necessary stay disposition has also been obtained. For the channel of filing opened by the text to lead through to an actual stop, these two must be viewed as overlapping.
The strongest counterargument starts from the point that there may be property whose title has merely been transferred to a third party, and holds that subdividing the means of objection in this way before imminent execution places an excessive burden of choice on the right holder. While choosing which action to file, execution already proceeds; the situation in which one loses the thing without even contesting the omitted assertion because one is protecting the right on the path chosen is one of substantial practical inconvenience. Yet the answer given above is this: the mere fact that one uses a thing cannot establish ownership or a right of exclusion. In this scene where debtor B contests on the ground of payment and third party C claims that the attached object is his own, the circumstance that C claims ownership does not, in itself, establish ownership, nor does it remove the burden of choice pointed out by the counterargument.
Nevertheless, the scope fixed by the scene is clear. Thus, that a third party may file an action for objection against the creditor on the basis of ownership of the object or of a right to prevent its transfer or delivery is covered by the text; but whether the performance demanded, the parties, and the conditions have been specified in the prayer for relief, and whether the necessary stay disposition has also been obtained, remain undetermined on the strength of this scene alone. However, if only a decision to stay proceedings is confirmed, the state indicated by cancellation of the existing attachment is restored.
The boundary of this section is as follows. The standard by which the channel of this remedy opens is deemed satisfied in the case where an action for objection suited to the contested right, condition, succession, or third-party right has been filed and the necessary stay disposition has also been obtained. This does not declare that execution has actually stopped or that the thing has been recovered, nor does it mean that the user of property whose title has merely been transferred establishes a right of exclusion on that fact alone.
3.2The Conditions That Block Relief
In the preceding section, suits contesting enforceability arising from fulfillment of a condition or succession were distinguished from objections to the claim itself. Since the contests of B and C aim at different actions, that distinction remains alive at this point as well. Yet in the face of the fact that execution continues, one question remains: how does an owner who is not the debtor stop it, and what are the conditions under which the remedy is barred? What is handled here is the exclusion of unlawful or unjust execution and provisional stay, and clarifying when its channel closes is the task of this section.
The relevant text is Article 48 (1) of the Civil Execution Act. It provides: "Where a third party claims ownership of the object of compulsory execution or claims a right to prevent the transfer or delivery of the object, such third party may file an action for objection to the compulsory execution against the creditor." The actor indicated by this sentence is the third party who claims ownership or claims a right to prevent delivery; the act is the filing of an action for objection against the creditor; and the condition is the assertion of that right concerning the object of compulsory execution. The following sentence merely sets the co-defendant structure on the premise of the case where the debtor contests the objection. Here, third-party objection means a claim for exclusion based on a third party's right concerning the object of execution, and this is the character of the suit drawn by this text.
That text merely fixes the standing to bring the action; it does not say that the filing itself stops the execution. Here, filing the action and stopping the execution are judgments of different stages. The former asks who may face the creditor on the basis of what right; the latter asks whether there exists a disposition serving as the ground for staying the execution in progress. If this distinction is blurred, one is led to read that the effect of a stay of execution arises from the mere fact that the complaint has been received. The conclusion of this section is established in exactly the opposite direction. Where only an action for objection has been filed, no disposition serving as the ground for a stay of execution exists, and thus no effect of stopping the execution in progress has arisen, the channel of remedy is closed if even one of the statutory requirements is not satisfied.
The strongest counterargument does not aim at quantity or procedure but at the distribution of burdens. It says that if the means of objection are subdivided into objections to the claim itself, contests over enforceability arising from succession, and third-party objections concerning the object, then in the face of imminent execution the right holder is saddled with a burden of judging which action to choose. The fact that there may be property whose title has merely been transferred to a third party adds to that inconvenience: where the actual state of the property diverges from its documentary indication, there is the loss of finding it hard to discern which action must be chosen. Yet the answer given above is maintained without removing that disadvantage. There must be materials capable of establishing ownership or a right to prevent delivery; the mere fact of use, without such establishment, does not satisfy the requirements at this stage.
In this scene, only two facts bear directly on this question: that C claims the attached object is his own, and that the execution continues. The former fact meets the requirement of asserting ownership under Article 48 (1) of the Civil Execution Act. The latter fact shows what state the absence of a stay disposition leaves in the actual execution. The scene fixes nothing as to whether a complaint has been filed, whether a stay disposition exists, the form of the ownership documents, or whether debtor B contests the objection. Accordingly, what is actually confirmed among the objection complaint, extinction of the right or ownership documents, the execution clause, and stay or revocation dispositions remains undetermined. However, the comparison condition that, if only a decision to stay proceedings is confirmed, the state indicated by cancellation of the existing attachment is restored remains valid, and that confirmation is read not as an additional fact outside the scene but as a shift in the conditions of adjudication.
The conclusion this section permits is narrow. Its scope is that a third party may file an action for objection against the creditor on the basis of ownership of the object or of a right to prevent its transfer or delivery, and that the filing of that action alone does not automatically produce the effect of stopping the execution in progress. This judgment stops at establishing the character of the action; whether a complaint has actually been received, whether a stay disposition has been rendered, and who owns the object are not determined by this scene alone. A lack of materials means undetermined and does not immediately mean that no remedy is available. The next thing to ask is whether filing that action actually stops the execution.
3.3The Boundary That Remains When There Is No Data
In the preceding section, it was held that where only an action for objection has been filed, no disposition serving as the ground for a stay of execution exists, and no effect of stopping the execution in progress has arisen, this remedy is barred. But in a scene where B and C each put forward different assertions, if not even the character of the contest has been discerned, where should the adjudication be placed? In other words, the present question is where the boundary lies at which no adjudication can be made for want of materials.
The text corresponding to this question is Article 48 of the Civil Execution Act. Article 48 (1) provides: "Where a third party claims ownership of the object of compulsory execution or claims a right to prevent the transfer or delivery of the object, such third party may file an action for objection to the compulsory execution against the creditor." (Civil Execution Act, Article 48.) The actor indicated by this text is the third party who is not the debtor; the act is an assertion of ownership of the object or an assertion of a right to prevent its transfer or delivery; and the condition is the filing of an action seeking the exclusion of the compulsory execution on the ground of that right.
If this text is joined to the distinction established earlier, one must first discern the character of the contest before one can say what that action resists. The conclusion of this section is this: where it is not specified whether the contest concerns the claim itself, succession, or a third-party objection concerning the object, the adjudication is left undetermined, and this is distinguished from the case where the remedy is barred. In other words, the state in which, for want of adjudicative materials, what is being contested is not identified, and the state in which identification has occurred but, no stay disposition existing, no effect of stopping the execution in progress has arisen, are not the same defect. In the former, the place of adjudication is empty; in the latter, the remedy following adjudication cannot proceed. Continuing from the latter, which the preceding section handled, this section handles only the boundary corresponding to the former.
The strongest counterargument presses the point thus: there may be property whose title has merely been transferred to a third party. Therefore, before imminent execution, subdividing and distinguishing who must bring the action for objection and on what ground imposes an excessive burden of choice on the right holder. This counterargument directly targets the loss in property where the registered owner and the actual user diverge — the right holder hesitating and execution proceeding first — and it also reveals the inconvenience of erecting form while ignoring the circumstance that the title has merely been transferred. Even so, the answer given above is maintained within the scope of the counterargument. The circumstances of use and possession that the counterargument speaks of are merely materials for judgment, and that single fact cannot conclude the existence or non-existence of the right.
B's contest asserts that the claim has been extinguished by payment, while C's contest falls under a claim for exclusion based on ownership of the object. Although the content of the contests is indicated in this way, on the strength of this scene alone it is not further confirmed on what ground the two assertions actually fold into the creditor's execution. Accordingly, at what stage of the remedy, being the exclusion of unlawful or unjust execution and provisional stay, this situation is placed, and further, where C's assertion of ownership stands between the transfer of title and actual control, remain undetermined. What remains is only that one must not confuse the preceding condition — that where only an action for objection has been filed, no disposition serving as the ground for a stay of execution exists, and thus no effect of stopping the execution in progress has arisen, this remedy is barred — with the case where the character of the contest itself has not been identified.
Accordingly, the conclusion this section permits is narrow. Where it is not specified whether the contest concerns the claim itself, succession, or a third-party objection concerning the object, the adjudication is left undetermined, and this undetermined status is placed in a different classification from the state in which the remedy is barred. Conversely, passing on while treating ownership or a right of exclusion as established on the strength of the single fact of use or possession, or declaring straightaway that no remedy is available for want of materials, is a reading this section does not permit. The marking of undetermined stands only at the point where a subsequent judgment has been reserved.
3.4The Records Needed for Determination
Having distinguished actions that contest the enforceability arising from fulfillment of a condition or succession from objections to the claim itself, debtor B contests on the ground of performance, while third party C asserts that the object of attachment is owned by C, yet the execution continues. In this scene, the question of how an owner who is not the debtor stops the execution carries with it, apart from the basis of the right, the further problem of what materials that right must be presented in. Since the disputes of B and C each aim at different objects, it is necessary first to examine which record supports which stage.
The textual basis of the third-party objection lies in Article 48 (1) of the Civil Execution Act. It provides: "Where a third party asserts ownership over the object of compulsory execution, or asserts a right that prevents the transfer or delivery of the object, the third party may bring an action for objection against the compulsory execution against the creditor. Provided, that where the debtor contests that objection, the debtor may be joined as a co-defendant." The actor referred to by this text is a third party who is not the debtor; the act is an assertion of ownership over the object or of a right preventing its transfer or delivery; and the condition is the bringing of an action for objection against the compulsory execution against the creditor on the basis of that assertion. The choice of joining the debtor as a co-defendant, provided in the proviso, addresses only the case where the dispute spreads between the third party and the debtor.
On the basis of this text, the conclusion of this section is that stage determinations are made only from materials contained in the established record. The complaint for objection, the materials on extinguishment of the right or on ownership, the instrument of execution, and the stay or revocation ruling constitute such materials, and absent records are not filled by presumption. Here one must distinguish what the complaint proves from what the materials on right or ownership prove. The complaint is the material that discloses the object and basis of the dispute; the materials on extinguishment of the right or on ownership are the materials supporting the substance of that basis; and the instrument of execution and the stay or revocation ruling are the materials that mark the basis of the execution and the state of its progress. If these two are read bundled together, what remains is not the type of materials submitted but merely the fact of submission, and the question of what constitutes the ground for judging a given stage disappears. Accordingly, even with the same materials, the result of the judgment differs depending on which stage they indicate.
The strongest counterargument targets the point that there may be property whose title has merely been transferred to a third party. Even where the formal owner is registered as a third party, the substantive interest may remain with the debtor, and in such a case, the loss identified by the counterargument is only that the burden grows of subdividing the means of objection and choosing on what basis to contest in favor of the right-holder. Faced with imminent execution, the inconvenience and cost that choice imposes on the right-holder cannot be ignored. The foregoing answer, however, is that ownership or the right of exclusion cannot be established on the mere fact of using the thing, and this answer does not erase the unfavorable aspects of the counterargument. Even if there are separate materials examining the substance of the title transfer, the fact of use itself cannot serve as a basis for entering in the record.
In the synthetic scene, what materials C will produce in asserting ownership, and in what materials B's assertion of performance is organized, are not specified. Whether a complaint for objection has been filed, whether materials on extinguishment of the right or on ownership were presented together, and in what state the instrument of execution and the stay or revocation ruling stand, cannot be determined from the present materials. Accordingly, from this scene alone it cannot be ascertained whether the complaint and the underlying materials diverge from each other, or whether the materials are complete even up to a stay ruling so that the stage of exclusion of execution has been reached. The fact that materials are absent does not translate into the meaning that relief is impossible, and remains undetermined.
The conclusion this section permits is narrow. It confirms a form of dispute consistent with the text that a third party may bring an action for objection against the creditor on the basis of ownership over the object or of a right preventing its transfer or delivery, and confirms the criterion that stage determinations are made only from materials recorded in the complaint for objection, the materials on extinguishment of the right or on ownership, the instrument of execution, and the stay or revocation ruling. A judgment that establishes ownership or the right of exclusion from the fact of use itself, a judgment that reads the absence of a record as the absence of an outcome, and a judgment that concludes from the mere state of materials not yet existing that relief is impossible all lie outside the range this section permits.
3.5Circumstances That Change the Decision
This determination rests on the complaint for objection, the materials on extinguishment of the right or on ownership, the instrument of execution, and the stay or revocation ruling. Without that record, the conclusion remains undetermined. Moreover, a determination framed around the question of how an owner who is not the debtor stops the execution does not hold as it is once a single reversed circumstance is confirmed. That is, it must be examined under what changed circumstance the determination is reversed. This question does not re-ask the record requirements set by the preceding section, but addresses which condition, once those requirements are met, restores the designated state when it changes.
The actor referred to by this text is a third party; the act is the bringing of an action for objection on the basis of ownership over the object of compulsory execution or of a right preventing its transfer or delivery; and the opposing party is the creditor. Here, the third-party objection means an exclusion claim based on the third party's right over the object of execution.
Third party C asserts that the object of attachment is owned by C, and Article 48 of the Civil Execution Act opens to such a third party the way to bring an action for objection against the creditor. Connecting this basis with the conclusion of this section yields the determination that the state marked as revocation of the existing attachment is restored once only a decision to stay proceedings is confirmed. This determination separates a judgment that establishes the existence or nonexistence of a right from a judgment dealing with the progress of execution. The fact that an exclusion claim has been brought by an action for objection and the fact that a ruling halting the current execution has been rendered are judgments of different stages, and the mere fact that the former is confirmed does not mean the latter has been established in its place.
The strongest counterargument targets the point that there may be property whose title has merely been transferred to a third party. The disadvantage that subdividing the action for objection imposes an excessive burden of choice on the right-holder before imminent execution operates as well. Execution is under way and the property has already been seized, and in the interval of choosing which action to bring, the state of the object may change. Even so, answering this counterargument leaves the conclusion intact. This is because ownership or the right of exclusion cannot be established on the mere fact of using the thing. The circumstance that title has been transferred, or the fact of use, may serve as materials supporting the claim of the third-party objection, but cannot serve as the basis establishing the third party's right over the object of execution itself.
Among these, the fact relevant to this question is that C seeks to block execution by asserting ownership, and this falls within the third party's assertion under Article 48 (1) of the Civil Execution Act. By contrast, B's defense of performance contests the existence or nonexistence of the claim itself and is distinguished from the exclusion claim of the third-party objection. The condition that the state marked as revocation of the existing attachment is restored once only a decision to stay proceedings is confirmed is a circumstance not present in the scene and therefore remains undetermined. Ownership or the right of exclusion cannot be established on the mere fact of using the thing, and the scene provides no material for rendering that judgment.
The conclusion this section permits is that third party C may bring an action for objection against the creditor on the basis of ownership over the object of execution or of a right preventing its transfer or delivery, and that if a decision to stay proceedings is confirmed, the state marked as revocation of the attachment may be restored. By contrast, this section does not permit treating the execution as already halted on the mere fact that an action for objection has been filed; establishing ownership or the right of exclusion on the mere fact of using the thing; or establishing prescription or the success or failure of relief while the dispute remains unspecified as to whether it concerns the claim itself, succession, or third-party objects. If the record is absent or the condition is unconfirmed, the matter remains undetermined.
3.6The Strongest Counterargument and the Answer
After distinguishing actions contesting the enforceability arising from fulfillment of a condition or succession from objections to the claim itself, what remains is the disposition of property that is held or simply used in the name of the right-holder. The question, then, is what should serve as the basis in the position of someone other than the debtor asserting that he is the right-holder. For the sympathy that the thing belongs to another alone does not sustain a judgment stopping the execution.
For a third party asserting a right over the object of execution, the statute leaves open an express channel. "Where a third party asserts ownership over the object of compulsory execution, or asserts a right that prevents the transfer or delivery of the object, the third party may bring an action for objection against the compulsory execution against the creditor. Provided, that where the debtor contests that objection, the debtor may be joined as a co-defendant." (Article 48 of the Civil Execution Act) In this text, the actor is the third party asserting a right over the object of execution, the opposing party is the creditor, and where there is a contesting debtor, a co-defendant may be added. The subject matter of the assertion is limited to ownership or to a right preventing transfer or delivery.
The qualification the statute confers is that an action may be brought; it does not mean that the assertion is itself a proven right. The reason for separating the two is that the establishment of the action and the recognition of the claim are different stages of judgment. Fixing the meaning of the third-party objection as an exclusion claim based on the third party's right over the object of execution is intended to make clear that the starting point of the claim is a right. The fact of use only points to the right; that fact alone does not serve as the basis establishing ownership or the right of exclusion.
The strongest objection to this distinction is that, before imminent execution, further subdividing the means of objection shifts an excessive burden of choice onto the right-holder. In the reality where seized property passes to another, it is also pointed out as a loss that, if even traces of use are excluded, all visible protection is lost and one wanders through the procedure. Yet even acknowledging this loss does not change the conclusion. Ownership or the right of exclusion cannot be established on the mere fact of using the thing, and the right to be established must follow through the assertion of right and the resulting dispute that the statute governing the action requires.
Here, debtor B's dispute touches upon the objection to the claim itself, while third party C's dispute touches upon the third party's right over the object. The assertions of debtor B and third party C rest on different actors and cannot be lumped together, and the fact that execution continues does not mean that their disputes have already been accepted. Whether the property is merely titled to a third party, and who actually uses it, are likewise not determined from this scene alone.
What is determined is narrow: the third-party objection is an exclusion claim based on the third party's right over the object of execution, and the third party asserting that right may bring an action for objection against the creditor. That said, ownership or the right of exclusion is not established from traces of use alone, nor is an obtained establishment read at once as meaning the execution has stopped.
3.7The Link to the Application and the Dispositive Part
Yet in the face of actual execution, one cannot say that this principle is carried through just as it stands. B's defense of performance and C's assertion of ownership differ in character. B's defense targets the point that an already arisen claim has disappeared, whereas C's assertion targets the point that the thing on which the hand of execution rests was never the debtor's property. In the latter case, how does an owner who is not the debtor stop the execution?
Article 48 (1) of the Civil Execution Act provides: "(1) Where a third party asserts ownership over the object of compulsory execution, or asserts a right that prevents the transfer or delivery of the object, the third party may bring an action for objection against the compulsory execution against the creditor." This text first limits the actor to a third party. A third party means a person who is not the execution debtor. Next, it defines the act as the assertion of a right. The case of asserting ownership and the case of asserting a right that prevents the transfer or delivery of the object are placed together. Finally, it designates the creditor as the opposing party and fixes the means as an action for objection against that compulsory execution.
Unlike the objection to the claim itself, addressed in the preceding section, this text places the basis of the action not in the existence or nonexistence of the claim but in the third party's right over the object. The premise carried over from the preceding section is the distinction between actions contesting the enforceability arising from fulfillment of a condition or succession and objections to the claim itself. That distinction shines here. An instrument of execution carrying enforceability reaches out to the object on the premise of a valid claim, but if the thing it touches is not the debtor's property, a problem arises that is separate from the existence or nonexistence of the claim. That it is an exclusion claim is the key. The direction the action takes is not toward extinguishment of the claim but toward exclusion of the execution.
Yet not every assertion riding on the status of a third party is accepted. Here the strongest counterargument is that there may be property whose title has merely been transferred to a third party. That is, there may be cases where actual use and control rest with the debtor while only the outward form of ownership is turned over to a third party, and if such disruption is tolerated, the loss arises that a legitimate creditor's execution returns empty-handed. At the same time, there is the criticism that the subdivision of this means imposes an excessive burden of choice on the right-holder before imminent execution: one is forced to choose between asserting ownership and asserting a right preventing transfer or delivery, and when to bring the action. Even so, the conclusion stands. The outward appearance of use reaches only as far as a circumstance of the right; it cannot serve as the basis establishing the right itself. Nor is exclusion recognized merely from the formal title of ownership. Either way, if the judgment turns on a single outward appearance, the risk of disruption pointed out by the counterargument remains.
Contrasting this section with the synthetic scene makes the boundary clear. B's defense of performance concerns the existence or nonexistence of the claim itself, and thus aims at a different target from the exclusion claim of this section. C asserts that the object of attachment is owned by C. Whether C falls within "a third party" is determined by looking to whether C is an actor distinct from debtor B. Yet the mere fact that execution continues does not mean C's assertion of ownership has been rejected, nor does the fact that C actually uses the thing mean that ownership has been established. Judged from the facts placed in the scene alone, it cannot be determined which is the case. Accordingly, what materials support C's right, and whether a ruling to stay execution exists, remain undetermined, unascertained in this section. What is clear is only that C stands at the threshold of qualification to bring an action for objection against the creditor by asserting a right over the object.
In sum, an owner who is not the debtor can stop the execution through the channel of an action for objection against the creditor. That channel opens, however, only when it rests on the qualification of ownership over the object or of a right preventing its transfer or delivery. The fact that it is open must not be read as converting into an actual halt of execution. Bringing an action for objection and receiving a ruling that serves as the basis for staying execution and halting the current execution are separate stages. Even if unverified materials remain, this narrow conclusion already established does not waver. Only if ownership or the right of exclusion is established on the mere fact of using the thing does this conclusion fail to hold.
3.8The Scope This Section Undertakes
In this scene the question branches in two directions. One embraces the debtor's defense that the debt has been paid; the other embraces a third party's assertion that another's property has been seized. That is, it distinguishes an action contesting the force of execution arising from fulfillment of a condition or succession from an objection to the claim itself. Beyond this distinction, what must now be asked is what procedure a person asserting ownership must follow in order to remove his own property from execution. This question must be handled separately from an action contesting the existence of the claim itself.
On this question, the relevant source text is the wording prescribed in paragraph (1) of Article 48 of the Civil Execution Act. "Where a third party asserts ownership over the object of compulsory execution, or asserts a right that prevents the transfer or delivery of the object, the third party may bring an action for objection to that compulsory execution against the creditor. Provided, that where the debtor disputes that objection, the debtor may be named as a co-defendant." (Civil Execution Act, Article 48) The subject indicated by this wording is a third party, not the debtor, and the act is asserting his own right over the object of compulsory execution while bringing an action for objection against the creditor. As the basis of the assertion, the wording leaves open ownership of the object, or a right that prevents the transfer or delivery of that object.
Accordingly, the conclusion determined on the basis of the above wording is that a third party may bring an action for objection against the creditor on the basis of ownership of the object or a right preventing its transfer or delivery. The reason for grouping this provision under the name claim for exclusion is that this action does not dispute the existence of the claim itself, but rather has as its object the diversion of that execution by reason of another's right established over the object of execution. When the debtor asserts the extinguishment of the claim itself, and when an owner recovers another's property, the matter in dispute and the direction of the action differ from each other, and maintaining this distinction serves as the standard for placing the two procedures each in its proper position. In addition, the condition in the wording that where the debtor disputes the objection the debtor may be named as a co-defendant shows that the debtor's interest is at stake in the hearing of this action.
That said, the most persuasive counterargument targets the point that this device imposes an excessive burden of choice on a person asserting a right in the face of urgent execution. Its expression is that there may be property that has been transferred in name only to a third party. Circumstances in which the actual owner differs from the nominal holder may commonly arise, and in such situations, if one rushes in choosing against which party to bring the action and what materials to attach, one may fail to assert a rightful right in time. This disadvantage must not be erased. Even so, the answer above is not shaken. The basis of a third-party objection is not the surface of de facto use, but the basis of right required by the wording, namely ownership over the object or a right preventing transfer or delivery; accordingly, the path of fixing a claim for exclusion on the fact of use alone is not provided for within this provision.
Returning to this scene and comparing the scope of this section, the third party C is the one asserting that the attached object is his own. That assertion may be placed as an assertion corresponding to the second type in the wording, namely ownership of the object. This scene alone, however, does not reveal what the source of C's title to ownership is, nor what the complaint of objection, the ownership materials, the enforceable title, or a stay or revocation ruling may be. Therefore, when this scene is compared with the determination as it stands, what becomes established is only the structure of the basis that a person other than the debtor may bring an action for objection asserting his own right over the object; whether C actually holds that right remains undetermined. Since the synthetic scene did not set the existence of materials or the outcome of victory or defeat, those items cannot be filled in from this scene.
The conclusion this section permits is narrow. A third-party objection means a claim for exclusion based on a third party's right over the object of execution, and a third party may bring an action for objection against the creditor on the basis of ownership of the object or a right preventing transfer or delivery. Determinations beyond this scope, in particular a conclusion deriving ownership or a right of exclusion merely from the fact of using the thing, are not permitted by this section. In addition, the question of which action actually stops the execution is not the question of this section.
3.9Application of the Text of the Provisions and the Holdings of Precedents
In this scene, debtor B's assertion of payment and third party C's assertion of ownership stand on different foundations, and they share only the purpose of halting the present execution. That is, accepting the premise that an action contesting the force of execution arising from fulfillment of a condition or succession is distinguished from an objection to the claim itself, this stage confirms, on the basis of this premise, the wording of the source text that third party C may put forward to prevent the execution and its limits. This distinction is applied unchanged at later stages when the relationship between the action for objection and the stay of execution is addressed.
The subject this wording prescribes is a third party; the act is the bringing of an action for objection to compulsory execution against the creditor; and the condition is the assertion of ownership over the object or the assertion of a right preventing transfer or delivery. The following sentence, however, addresses only the designation of a co-defendant where the debtor disputes that objection, and no other criteria of judgment are contained in the wording of this item.
This wording merely fixes the requirements for a third-party objection and determines the opposing party; it does not combine into one the two stages of exclusion of unlawful or unjust execution and provisional stay. A third-party objection means a claim for exclusion based on a third party's right over the object of execution, and the exclusion spoken of here refers to putting forward the third party's assertion of right over the object against the execution. Therefore, the mere bringing of an action for objection does not of itself immediately stay the present execution; a stay requires the separate stage of a stay ruling where necessary. Using only the wording of the relevant source text as the basis for determining the exclusion of unlawful or unjust execution and provisional stay, without extending it to the reasons for judgment or to items not addressed in this section, is precisely to preserve the scope of allocation of this wording.
Where property that has been transferred in name only to a third party actually exists, requiring the action for objection to be subdivided and brought imposes upon the right holder placed before urgent execution an unfavorable burden of choice. Such a counterargument points to real loss and procedural inconvenience, and it also notes that if the distinction is applied too strictly, a third party in need of protection may commit the error of choosing and bringing the wrong action. Yet even so, the attribution of a right cannot be fixed upon the fact of use itself. Since ownership or a right of exclusion cannot be fixed upon the mere fact of using the thing, notwithstanding the inconvenience the counterargument points to, the condition of asserting the right required by the wording remains intact.
In the synthetic scene, C asserts that the attached object is his own, and B too disputes the execution on the ground of payment, so it must first be determined which assertion is placed in which procedure. Compared with the conditions fixed by the wording of Article 48 (1) of the Civil Execution Act, C corresponds to the subject asserting ownership over the object and stands on a foundation separate from B's assertion of payment. However, since the facts, service, and performance results of the actual case have not been confirmed, matters such as which assertion will ultimately be accepted, or which execution procedure is under way, remain undetermined. Nor can the appearance that C is using the thing substitute for the assertion of ownership or of a right preventing transfer or delivery that the wording requires; the attribution of the object cannot be fixed upon this fact alone.
The conclusion this section permits places the basis for determining the exclusion of unlawful or unjust execution and provisional stay in the wording of Article 48 (1) of the Civil Execution Act, and judges the third-party objection within the range satisfying the requirements of third party, assertion of right, and opposing party fixed by that wording. Conversely, declaring that the effect of a stay of execution arises immediately from the mere bringing of an action for objection, drawing in reasons for judgment outside the wording as the basis for determination, and fixing ownership upon the fact of use are conclusions this section does not permit. Only explaining the wording within the scope of the question addressed and comparing its conditions has been established; items for which the material is insufficient remain undetermined.
3.10Fine Distinctions Within the Stage
After the preceding stage of analysis distinguished an action contesting the force of execution arising from fulfillment of a condition or succession from an objection to the claim itself, the question now is what parts must again be divided and determined within the exclusion of unlawful or unjust execution and provisional stay. Within this scene, the author sets down what is to be divided and determined.
The relevant wording, Article 48 (1) of the Civil Execution Act, provides: "Where a third party asserts ownership over the object of compulsory execution, or asserts a right that prevents the transfer or delivery of the object, the third party may bring an action for objection to that compulsory execution against the creditor." The subject indicated by this wording is a third party asserting a right over the object of execution; the act is the bringing of an action for objection against the creditor; and the condition is the assertion of ownership over the object or the assertion of a right preventing transfer or delivery. The proviso of the same paragraph merely adds that a co-defendant may be joined where the debtor disputes that objection.
Since that wording constitutes the requirements of a third-party objection, that is, of a claim for exclusion based on a third party's right over the object of execution, the author determines the detailed subdivision within the stage on that basis, confining it to the conditions of the case where it operates, the case where it is blocked, and the case where it is undetermined. Here, the claim for exclusion called a third-party objection and the procedural effect called the exclusion of unlawful or unjust execution and provisional stay are different stages of judgment, for the former determines the presence or absence of the right that is its object, while the latter determines in what state the present execution is placed. The reason the author keeps these two apart is to prevent the misunderstanding that once the basis of the right is fixed, the execution stops of its own accord. Adding new requirements or new stages to this distinction is not permitted.
The strongest counterargument targets the point that property transferred in name only to a third party may exist, and the point that the subdivision of objection devices imposes upon the right holder facing urgent execution an excessive burden of choice. If the transfer of name itself is accepted as confirmation of a right, there is the benefit of finishing the procedure quickly, and the inconvenience of being required to pursue several devices separately can be reduced from the standpoint of the injured party. Yet the author's answer remains that ownership or a right of exclusion cannot be fixed upon the mere fact of using the thing. Neither the fact that the name has been transferred nor the fact that the thing is being used serves to fix in place of the assertion of ownership or of a right preventing transfer or delivery required by Article 48 (1), and so it does not remove the disadvantage the counterargument raises.
The author determines this fact by comparing it with the conditions set forth above. If C brought an action for objection and also obtained the necessary stay ruling, the case where it operates would be established; but the state of this scene, in which only the action for objection has been brought and there is no ruling serving as the basis for a stay of execution, so that the effect of halting the present execution has not arisen, falls within the case where it is blocked. However, the point that it has not yet been specified whether C's dispute concerns the claim itself, succession, or a third-party object, and the fact that the record comprising the complaint of objection, materials of extinguishment of right or ownership, the enforceable title, and a stay or revocation ruling has been gathered, are not confirmed by the scene, and thus remains in the case where it is undetermined.
The conclusion this section permits is limited to the conditions specified for the detailed subdivision within the stage, and ownership or a right of exclusion cannot be fixed upon the mere fact of using the thing. Since victory or defeat, recovery, and on-site effects cannot be declared from the scene alone, that part is left undetermined.
3.11Synthesis of Effectiveness, Blockage, and Undetermination
After distinguishing an action contesting the force of execution arising from fulfillment of a condition or succession from an objection to the claim itself, the question now is the place where opening and blocking diverge. At what point this execution can be stopped, and what remains when it cannot be stopped, is the question addressed here.
The wording corresponding to this question is Article 48 (1) of the Civil Execution Act. Here the subject is a third party, the act is the assertion of ownership over the object or the assertion of a right preventing transfer or delivery, and the opposing party is the creditor. The action for objection opens as the passage through which this right is put forward to exclude that compulsory execution.
The action this wording opens and the stay ruling stand at different stages. If a third-party objection is a claim for exclusion based on a third party's right over the object of execution, bringing the action corresponds to furnishing an assertion fitting the right in dispute. Yet the effect of halting the present execution does not arise automatically from that action alone; it opens only upon obtaining a necessary stay ruling. Where both stages are in place is the opening condition, and where only the action is in place and there is no ruling serving as the basis for a stay of execution is the blocking condition. This distinction does not treat the bringing of the action and the effect of the stay of execution as the same thing.
The strongest counterargument starts from the point that property may exist that has been transferred in name only to a third party. Behind it lies the complaint that the subdivision of objection devices into the claim itself, succession, and third-party rights in the face of urgent execution imposes an excessive burden of choice upon the right holder. The scene in which execution continues even though C claims the attached object as his own is precisely the shape of that burden. If the fact of use cannot serve as the basis for fixing the right, then a transfer of name and use alone do not immediately establish a claim for exclusion either; notwithstanding the burden the counterargument points out, the distinction between the action fitting the right and the stay ruling is maintained.
The facts left in the synthetic scene are only B's assertion of payment, C's assertion of ownership, and the continuing execution. Whether B's dispute concerns the claim itself or the force of execution arising from fulfillment of a condition or succession, and whether C's dispute concerns a third-party object, cannot be specified from this scene alone. This indeterminacy does not eliminate the established conclusion; it leaves only the boundary that the type of dispute is determined before it is judged to fall on the opening or the blocking side. If a stay-of-proceedings decision is confirmed, the state marked as cancellation of the existing attachment may change, and this confirms that the stay ruling corresponds to the stage that halts the present execution.
What this section permits is the opening in a case where an action for objection fitting the right in dispute, condition, succession, or third-party right has been brought and the necessary stay ruling has also been obtained; what it does not permit is the blocking in a case where only the action for objection has been brought and, no ruling serving as the basis for a stay of execution existing, the effect of halting the present execution has not arisen. The indeterminacy remains as it is in the case where it has not been specified whether the dispute concerns the claim itself, succession, or a third-party object.
3.12Conclusion Carried Over to the Next Section
제삼자는 목적물 소유권이나 양도·인도를 막을 권리에 기초해 채권자를 상대로 이의의 소를 제기할 수 있다. 바로 이 감각이 이 절의 출발점이다. B의 다툼과 C의 다툼은 그 대상과 근거가 다르다. 앞 절은 다툼의 유형에 맞는 이의의 소와 정지 재판이 함께 갖춰진 경우와 그렇지 않은 경우를 나누었고, 이 절은 그 가운데 제삼자 권리에 기초한 경우를 마감하며 다음 물음으로 넘긴다.
그 문언은 "제3자가 강제집행의 목적물에 대하여 소유권이 있다고 주장하거나 목적물의 양도나 인도를 막을 수 있는 권리가 있다고 주장하는 때에는 채권자를 상대로 그 강제집행에 대한 이의의 소를 제기할 수 있다"고 정한다 (민사집행법 제48조). 여기서 주체는 제3자이고, 주장의 대상은 강제집행의 목적물이며, 주장의 근거는 목적물에 관한 소유권 또는 양도·인도를 막을 권리다. 피고는 채권자이고, 소의 성격은 그 강제집행에 대한 이의이다. 이 문언이 다루는 것은 청구 자체의 존부가 아니라 목적물 위의 집행을 제삼자의 권리에 기초해 배제하는 문제다.
이 문언과 이 절의 결론이 맞닿는 지점은 주체와 근거의 결합이다. 채무자가 아닌 사람이 채권자를 상대로 자신의 물건을 지키려 할 때, 그가 내세울 수 있는 틀이 제삼자이의다. 배제 청구라는 말은 집행의 효력을 없애달라는 청구가 아니라 목적물에 대한 집행을 그 권리 앞에서 물러나게 하려는 청구라는 뜻이다. C가 소유권을 주장한다고 해서 곧바로 그 물건이 C의 것임이 확정되는 것은 아니다. 소를 제기할 자격의 근거와 권리의 실체는 구별된다.
실제로 채무자가 재산을 다른 이름으로 옮겨 두었다면, 제삼자이의의 문은 이런 물건까지 가리는 통로로 쓰일 수 있다. 그러한 결과는 채권자가 채무자의 책임 재산에서 만족을 얻는 길을 좁히는 불이익을 낳는다. 급박한 집행 앞에서 권리의 모양까지 세분해 선택하도록 요구하는 이의 수단의 구조가 권리자에게 부담을 주기도 한다. 그러나 이 절의 답은 물건을 사용한다는 사실만으로 소유권 또는 배제권을 확정할 수 없다는 것이다. 사용의 사실은 권리의 근거를 확정하지 못하며, 반론이 지적한 위험은 사용의 사실로 권리 확정을 대신하는 방식으로 해소되지도 않는다.
합성 장면에서 이 절이 확정할 수 있는 것은 다투는 권리의 자리다. 이 주장은 목적물에 관한 소유권을 근거로 삼는다. B의 변제 항변은 청구 자체에 대한 이의의 자리에 놓인다. 두 주장이 한 집행 절차 안에 겹쳐 있어도 그 자리를 섞지 않는다. 집행이 계속되고 있다는 사실만으로 C의 소유권 주장이 기각되거나 승인된 것도 아니다.
이 절이 허용하는 것은 제삼자가 목적물 소유권이나 양도·인도를 막을 권리에 기초해 채권자를 상대로 이의의 소를 제기할 수 있다는 판단이다. 이 절이 허용하지 않는 것은 사용의 사실만으로 소유권 또는 배제권을 확정하는 판단이다. 같은 논리로, 이의의 소를 제기했다는 사실만으로 현재 집행이 멈춘다고 보거나, 그 소가 어떤 유형의 다툼인지 특정되지 않은 채로 집행의 운명을 결론짓는 것도 허용되지 않는다. 남의 재산에 미친 집행을 막을 문은 여기서 열리지만, 그 문을 통과한 뒤의 절차와 효과는 따로 확인해야 한다. 집행을 다투는 소를 내면 집행은 멈추는가?