Summary
Merely filing a suit of objection to the enforcement of a claim or a suit of objection to the grant of an execution clause has no effect on the progress of execution.
4.1The Standard by Which the Path Opens
법원에 다투고 있다는 안도감이 계속되는 집행을 가려서는 안 된다. 채무자 B는 변제를 이유로 다투고 제삼자 C는 압류 목적물이 자기 소유라고 주장하지만 집행은 계속되고 있다. 이 구제가 작동하는 조건은 무엇인가? 제삼자는 목적물 소유권이나 양도·인도를 막을 권리에 기초해 채권자를 상대로 이의의 소를 제기할 수 있다. B가 다투는 권리는 청구 소멸의 항변인지 승계인지 목적물 귀속인지에 따라 소의 형태가 갈린다.
민사집행법 제46조는 “제44조 및 제45조의 이의의 소는 강제집행을 계속하여 진행하는 데에는 영향을 미치지 아니한다”고 선을 그어 둔다. 이 문언이 말하는 주체는 집행력을 다투는 원고이고, 행위는 소의 제기이며, 조건은 그 제기 사실 하나이다. 집행정지 여부는 이 조문이 정하는 바가 아니다. 집행은 정지되지 않고, 다툼이 들어왔다는 사정만 형식적으로 남는다.
이 근거가 끌어내는 결론은 명료하다. 이의의 소를 제기한 원고가 집행정지 재판까지 받아야만 현재 진행을 멈추는 효과가 생긴다. 자동 정지의 부재와 정지 재판의 효과는 구분해야 한다. 전자는 소 제기만으로 집행이 멈추지 않는 상태이고, 후자는 법원이 별도로 결정한 정지의 효력이다. 두 가지가 한꺼번에 뒤섞이면 이의의 소가 곧 정지인 듯한 인상을 주지만, 이는 문언이 허용하지 않는 해석이다.
가장 강한 반론은 권리자에게 가해지는 시간상의 손실을 겨냥한다. 별도 정지를 구할 비용과 절차가 소를 내야 하는 급박한 집행 앞에서 제기 시점의 선택을 지연시키고, 결국 정지 재판을 받는 시점이 늦어질 수 있다. 이의 수단의 세분화가 그만큼의 이중 부담으로 돌아온다는 지적이다. 그렇더라도 이의의 소 접수를 집행정지 결정으로 취급할 수는 없다. 접수는 정지 결정이 아니며, 정지 재판의 근거를 찾지 않으면 현재 집행이 멈추는 효과는 생기지 않는다.
이 장면에서 B와 C가 내놓은 것은 청구 소멸 항변과 목적물 소유권 주장이라는 두 가지 서로 다른 권리이다. 이의 소장과 함께 권리 소멸 자료 또는 소유 자료, 집행문이 놓이고, 여기에 정지 또는 취소 재판이 더해질 때 비로소 집행을 멈추는 경로가 열린다. 다만 이 장면만으로는 B의 주장이 승계 사유와 겹치는지, C의 소유 자료가 어떤 형태인지 확인되지 않는다. 돌연한 진행 정지 결정만 확인되면 압류 취소로 표시된 상태는 되돌려야 한다.
소를 냈다는 사실만으로 집행이 멈추는 것은 아니다. 즉, 접수만으로 정지가 생긴다고 확정하거나 압류가 곧 취소되는 것으로 기대해서는 안 된다. 반대로 정지 재판의 근거를 찾지 못했다는 사정만으로 권리가 미성립한다고 단정할 수도 없다. 이 구제가 작동하는 조건은 다투는 권리·조건·승계·제삼자 권리에 맞는 이의의 소 제기와 필요한 정지 재판의 결합이다.
4.2The Conditions That Block Relief
그런데 소를 냈다는 사실만으로 강제집행의 진행이 잠시도 멈춘다면, 다투는 사람에게는 편리하겠지만 채권자의 만족은 뒤로 밀린다. 반대로 소를 냈다는 사실이 집행에 아무런 작용도 하지 않는다면, 판결을 기다리는 동안 권리가 실행되어 돌아올 수 없는 상태가 될 위험이 남는다. 이 양쪽 사이에서 법은 소의 제기와 집행의 정지를 서로 다른 단계로 다룬다. 이 절에서 묻는 것은 바로 그 구별이 만들어 내는 차단 조건이다. 집행을 다투는 소를 내면 집행은 멈추는가, 그리고 구제가 막히는 조건은 무엇인가.
이 물음에 답할 원문은 민사집행법 제46조 제1항이다. 그 문언은 다음과 같다. “①제44조 및 제45조의 이의의 소는 강제집행을 계속하여 진행하는 데에는 영향을 미치지 아니한다.” (민사집행법 제46조) 이 문장이 말하는 주체는 제44조와 제45조에 따른 이의의 소를 제기한 사람이고, 행위는 그 소의 제기이며, 조건은 소가 접수되어 계속되어 있다는 사실 하나다. 그 결과로 문언이 정하는 것은 단 하나다. 강제집행을 계속하여 진행하는 데 영향이 생기지 않는다는 것. 여기서 집행의 진행에 영향이 없다는 표현은 집행 절차가 제자리를 밟아 나간다는 뜻으로 읽힌다. 이 조문은 다른 문제, 가령 이의의 소의 요건이나 인용 판결의 효과를 정하는 것이 아니다.
따라서 이 조문과 이 절의 결론은 하나의 사슬로 이어진다. 소를 제기한 것만으로 집행이 멈추지 않는 상태, 즉 자동 정지의 부재가 전제되면, 현재 집행을 멈추는 효과를 만들려면 별도의 정지 재판이 있어야 한다. 이때 구제 통로를 열려면 이의의 소를 제기하고 필요한 정지 재판까지 받는 두 가지가 함께 놓여야 한다. 두 요소 중 하나라도 빠지면, 곧 이의의 소만 제기하고 집행정지의 근거 재판이 없어 현재 집행을 멈추는 효과가 발생하지 않은 경우, 법정 요건 중 하나라도 충족되지 않으면 구제 통로는 닫힌다. 소의 제기와 집행정지를 나누어 보아야 하는 이유가 바로 여기에 있다. 전자는 다투는 권리를 법원에 제시하는 것이고 후자는 그 다툼이 판결로 확정되기 전에 집행의 흐름을 잠시 멈추는 힘이다. 둘을 한 사건으로 뭉개면 자동 정지의 부재라는 법의 구별이 사라진다.
가장 강한 반론은 비용과 시간 쪽에서 온다. 급박한 집행 앞에서 이미 이의의 소를 내어 다툼을 시작한 권리자가 별도로 정지를 구하는 절차를 또 밟아야 한다면, 그 선택과 부담은 지나치다는 것이다. 집행 문란에 맞서는 사람에게 이의 수단이 이렇게 세분화되면 구제가 늦어질 수 있고, 그 사이에 목적물이 처리되어 버리면 이후 승소 판결이 있어도 회복이 어려워진다. 이 지적은 이 단계를 어렵게 만드는 현실을 정확히 짚는다. 접수는 재판에 다툼이 걸렸다는 기록일 뿐이고, 정지 결정은 집행 기관에 현재의 진행을 멈추라는 명령이다. 문언상 소의 제기가 집행의 진행에 영향을 주지 않는다고 선을 그어 둔 이상, 접수만으로 정지의 효과를 만들어 내면 그 선이 무너진다.
합성 장면으로 돌아가 보자. B와 C가 각각 변제와 제삼자 소유권을 내세웠지만 집행은 계속되고 있다. 이 사실 자체는 자동 정지의 부재가 현실화된 모습이다. 그러나 집행이 멈추었다고 보려면 정지 또는 취소 재판이 놓여 있어야 한다. 합성 장면은 그 재판이 있었는지, 또 어떤 조건으로 내려졌는지를 말해 주지 않는다. 그러므로 이 장면만으로는 정지의 유무가 확정되지 않는다. 미확정으로 남겨 둔다. 단, 진행 정지 결정만 확인되면 기존 압류 취소로 표시한 상태를 되돌린다. 반대의 경우, 정지 재판의 흔적이 없이 소만 제기된 상태라면, 이 단계의 구제는 열리지 않은 것으로 본다.
이 절이 허용하는 결론과 허용하지 않는 결론의 경계를 정리하면 다음과 같다. 허용되는 것은, 이의의 소만 제기한 상태에서 집행이 계속되는 것은 문언과 어긋나지 않으며, 그 상태에서 정지 재판 없이 집행의 중단을 기대할 수 없다는 판단이다. 허용되지 않는 것은, 소가 접수되었으니 집행은 자동으로 멈추어야 한다는 반대 해석이다. 같은 이유로 정지 재판이 있는지 없는지를 확인하지 않고 이 단계의 구제 가능성을 단정할 수도 없다. 법정 요건 중 하나라도 충족되지 않으면 구제 통로가 닫힌다는 결론은, 이 좁은 범위 안에서 유지된다. 다음으로 넘겨야 할 물음은 아직 남아 있다.
4.3The Boundary That Remains When There Is No Data
제삼자가 목적물 소유권이나 양도·인도를 막을 권리에 기초해 채권자를 상대로 이의의 소를 제기할 수 있다는 점은 확인했지만, 그 제기 자체가 무엇을 멈추는지는 별개의 물음이다. B가 다투는 사유는 변제에 따른 권리의 소멸이고 C가 내세우는 근거는 목적물에 대한 소유권이다. 그런데 두 주장이 법원에 접수되었다는 사실만으로 집행기관이 이미 진행 중인 절차를 멈출지는 이 장면만으로는 드러나지 않는다. 그래서 지금 묻는 것은 소를 냈다는 사실과 집행이 멈춘다는 결과 사이에 어떤 연결이 필요한가이다.
이 물음에 해당하는 문언은 민사집행법 제46조이다. 그 제46조 제1항은 제44조 및 제45조의 이의의 소는 강제집행을 계속하여 진행하는 데에는 영향을 미치지 아니한다 라고 선언한다. 여기서 주체는 제44조와 제45조가 정한 이의의 소를 제기한 사람이고, 행위는 그 소를 제기한 사실이며, 조건은 그 소가 계류 중이라는 것만으로는 강제집행의 계속에 아무 영향이 생기지 않는다는 것이다. 이 문언은 이의의 소가 가진 판단 대상이나 승소 시의 효과를 함께 규정하지 않는다. 해당 범위는 제46조 제1항 한정이며, 이 절에서 조문의 다른 항이나 다른 조를 끌어와 해설하지 않는다. 따라서 이 구절이 확정하는 것은 소 제기라는 절차적 사건만으로는 집행의 진행 상태가 바뀌지 않는다는 것에 그친다.
이 문언과 앞서 확인한 결론을 이으면 자동 정지의 부재라는 개념이 왜 필요한지 분명해진다. 자동 정지의 부재란 소 제기만으로 집행이 멈추지 않는 상태를 뜻한다. 제삼자가 이의의 소를 제기할 수 있는 자격을 갖추었다는 판단과, 그 제기만으로 집행이 멈춘다는 판단은 서로 다른 단계에 속한다. 전자는 누가 어떤 권리를 근거로 다툴 수 있는가를 정하고, 후자는 그 다툼이 현재 진행 중인 집행에 어떤 절차적 효과를 미치는가를 정한다. 이 두 단계를 섞으면 제기 자체가 정지와 같다는 잘못된 결론에 이르게 된다. 따라서 판단 재료가 특정되지 않은 사항은 불능과 구별해 미확정으로 남긴다는 기준이 여기서 작동한다. 무엇이 특정되지 않았는지는 소가 청구 자체를 다투는지 승계를 다투는지 제삼자 목적물의 귀속을 다투는지가 아직 가려지지 않았다는 데 있다.
가장 강한 반론은 별도 정지를 구할 비용 때문에 구제가 늦을 수 있다는 데 있다. 급박한 집행 앞에서 권리자는 이의의 소를 내는 것과 별개로 정지 재판까지 청구해야 하고, 그 사이에 목적물이 매각되거나 인도될 수 있다. 이의 수단이 청구이의와 집행문부여 이의의 소와 제삼자 이의의 소로 세분된 결과, 어느 통로로 가야 하는지 고르는 부담까지 권리자에게 지워진다는 비판도 뒤따른다. 이 손실과 불편은 지워지지 않는다. 접수는 서류가 법원에 들어왔다는 사실이고 정지 결정은 별도의 재판에 따른 효과이며, 앞의 문언을 전자가 후자를 대신한다고 보지는 않는다. 반론의 어려움은 제기만으로 안심해도 된다는 잘못된 안내를 정당화하지 못한다.
합성 장면에서 이 물음에 관련된 사실은 B의 변제 주장과 C의 소유권 주장, 그리고 집행이 계속되고 있다는 상태뿐이다. 이 사실들을 자동 정지의 부재라는 조건과 대조하면, 두 사람의 이의 소장이 접수되었다는 가정만으로는 집행이 멈추었다고 표시할 수 없다. 다만 B가 다투는 것이 청구 자체인지 승계인지, C가 다투는 것이 제삼자 목적물인지 판단에 필요한 자료는 이 장면 안에서 더 정해지지 않았다. 따라서 판단 재료가 특정되지 않은 사항은 불능으로 단정하지 않고 미확정으로 남긴다. 자료가 없다는 사실은 구제가 불가능하다는 뜻이 아니다.
이 절이 허용하는 결론은 소를 제기했다는 사실만으로 집행이 멈추었다고 보지 않는 것까지이다. 허용되지 않는 것은 접수 자체를 정지 결정과 같은 것으로 취급하는 것과, 미확정으로 남긴 사항을 불능으로 단정하는 것이다. 이미 정해진 좁은 결론은 자료가 없어 확정할 수 없는 경계를 불능과 구별해 미확정에 둔다는 것이며, 이는 실효의 판단과도 이어진다. 위법·부당 집행의 배제와 잠정 정지는 다투는 권리·조건·승계·제삼자 권리에 맞는 이의의 소를 제기하고 필요한 정지 재판까지 받은 경우에 작동한다. 이의의 소만 제기하고 집행정지의 근거 재판이 없으면 현재 집행을 멈추는 효과는 발생하지 않는다.
4.4The Records Needed for Determination
Building on the premise that a third party may bring an action for objection against a creditor on the basis of ownership of the subject matter or a right that prevents transfer or delivery, debtor B contests on the ground of payment and third party C asserts that the attached property is owned by itself, yet the execution continues. In such a scene, can the state in which the execution agency or the court has been placed be determined merely from the fact that the complaint has been received? This question is begun by confirming that, contrary to the expectation of the person who filed the action for objection, the execution procedure may proceed on its own.
The provision in question is found in Article 46 of the Civil Execution Act. Article 46, paragraph (1) thereof declares: "An action for objection under Articles 44 and 45 shall not affect the continuation of compulsory execution." (Civil Execution Act Article 46). The subject referred to here is the party who filed an action for objection under Articles 44 and 45, the act is the fact of filing the action, and the condition is the case in which the compulsory execution procedure is already continuing. The effect depicted by the text is that no effect arises upon the progress; the provision contains no room for reading that a state of suspension arises from the filing of the action itself. Since this provision is limited to an objection to the enforcement of a claim and an action for objection to the granting of an execution clause, it does not determine other issues.
The path connecting that text with the conclusion of this section is short. For the record of the filing of an action and the record of a suspension order each refer to different cases. The former shows only the commencement of a procedure in which a contested claim or right is asserted, while the latter shows the fact that a separate determination of the court was made to suspend the execution provisionally. If these two records are treated as a single bundle, it cannot be specified who, when, and under what conditions stopped the execution. Therefore, the stage determination is made only on the basis of materials recorded in the objection complaint, the materials on extinction of a right or ownership, the execution title, or a suspension or revocation ruling. Matters not confirmed by the set records remain in a state of absence of automatic suspension, that is, a state in which execution does not stop merely by the filing of an action.
The loss that this distinction most prominently addresses is the time and cost of the right holder placed before imminent execution. To obtain a separate suspension, another application and ruling must be undergone, and meanwhile the risk that the subject matter has already been disposed of must be borne as it is; this is the gist of the counterargument. The criticism that the subdivision of the means of objection places an excessive burden of choice on the right holder shares the same root. Reception means nothing more than the fact that the complaint has entered the court, while a suspension order means the determination that the court separately recognized grounds to stop the execution; if the latter is replaced by the former without confirming the latter in the records, it cannot be explained when and to what extent the suspension arose. The delay in relief pointed out by the counterargument remains and does not disappear.
The facts appearing in the synthetic scene are only three: the type of the contesting party and the contested right, and the fact that the execution is continuing. B contests the extinction of the claim itself on the ground of payment, and C asserts a third-party claim by invoking ownership of the attached property, but the types of assertion of these two alone do not permit knowing whether a ruling on suspension of execution exists. Accordingly, among the records for the stage determination, the objection complaint bears only on the identification of the type, and the materials on extinction of a right or ownership bear only on the direction of the asserted grounds, while the execution title or a suspension or revocation ruling is nowhere recorded in the scene. Where the dispute remains unspecified as to whether it concerns the claim itself, succession, or third-party property, the determination is left undetermined.
The conclusion permitted by this section is a narrow one: execution does not stop merely by the filing of an action, and the stage determination is made only on the materials appearing in the above four records. This conclusion neither denies the necessity of the suspension itself nor forecloses in advance the possibility of granting an application for suspension. Filling in missing records by presumption is not permitted; accordingly, years, amounts, time limits, or the outcome of performance in the actual case that are absent from the records cannot be supplied.
4.5Circumstances That Change the Decision
When an action for objection is filed, one is apt to feel the relief of having left the dispute to the court, but such relief must not veil the execution that continues. In this scene, the third party could bring an action for objection against the creditor on the basis of ownership of the subject matter or a right that prevents transfer or delivery, and is indeed contesting. What remains, however, is whether the current stage of execution stops merely by the fact that the action was filed. Since the record that the complaint has been received and the record that the execution has been interrupted refer to different cases, if the two are read as one, the time at which the dispute began is mistakenly taken as the time of the suspension of execution. Accordingly, the question handled here is whether the execution can be marked as having stopped merely by the circumstance that the dispute is pending before the court.
Article 46 of the Civil Execution Act provides that, with respect to an action for objection under Articles 44 and 45, "it shall not affect the continuation of compulsory execution." In this text, the subject is the person who filed an action in objection to the enforcement of a claim and an action for objection to the granting of an execution clause, the act is the filing of that action, and the condition is that the action falls under an action for objection pursuant to Articles 44 and 45. The effect specified is that such filing does not affect the continued progress of compulsory execution, and the absence of effect here does not mean that the execution procedure stops of its own accord. The same provision of Article 46 of the Civil Execution Act cannot be read as extending to regulate the types of other disputes or the effects of other means of relief. Accordingly, this text speaks only of the effect that the procedural event of filing an action exerts on the progress of execution, leaving the question of a separate suspension to be determined outside this text.
Connecting this text with the foregoing determination yields the distinction of the absence of automatic suspension. The absence of automatic suspension means the state in which execution does not stop merely by the filing of an action, and this is a procedural standard determined independently of the propriety of the action or the prospects of success of the claim. The author, taking this distinction as the basis, holds that at the stage where only the fact that the action for objection has been received is confirmed, no determination of bar or effectuation is made, and one waits with the pre-filing state of execution left intact. If a changed circumstance is confirmed, the existing determination is discarded and a fresh determination must be made from the beginning. If a ruling staying the proceedings is confirmed, the state marked as an existing revocation of attachment may change.
Those who criticize this distinction most sharply take aim at the point that, because of the cost and procedure involved in seeking a separate suspension, the right holder cannot be relieved in time before imminent execution. Since the means of objection are divided into several branches, if the right holder must separately find and claim a suspension ruling suited to the right holder's own circumstances, the burden of choice amplifies the loss at the time of enforcement. The author does not erase that loss and inconvenience. The disadvantage that no stage of execution stops merely from the fact that a dispute has been received remains as it is. Still, the receipt of an action for objection cannot be treated as a ruling on suspension of execution. Since reception and a suspension order are events requiring different requirements and records, if the former is used to supply the effect of the latter, the result is that the execution is recorded as stopped even though the circumstances requiring suspension were never examined. Therefore, the cost problem of a separate suspension cannot serve as grounds for collapsing this distinction, although the fact that such cost may delay relief remains as an unfavorable aspect of the counterargument.
The facts confirmed in the synthetic scene are only that B contests that the claim has already been extinguished by payment, and C contests that the attached property is owned by itself, yet the execution is continuing. On these facts alone, the time at which the action for objection was actually received, what kind of action for objection it is, and whether there was a suspension ruling are not determined. Under the author's criteria of determination, at the stage where the dispute is not specified as concerning the claim itself, a transfer, or third-party property, it remains undetermined. Only where third party C is specified as having filed an action for objection on the basis of ownership of the subject matter and has also received the necessary suspension ruling is the effectuation of the stage of exclusion of unlawful or unjust execution and provisional suspension opened. Conversely, where an action for objection alone has been filed and, there being no ruling serving as the grounds for suspension of execution, no effect of stopping the current execution has arisen, that stage is barred.
The conclusion permitted by this section is narrow. The single fact that an action for objection was filed cannot mark the execution as stopped, and conversely, the single fact that there was no suspension ruling cannot undo the value of the dispute. Since the filing of an action and a suspension order are separate events, the record of one alone must not be used to substitute for the effect of the other. Even if the materials remain insufficient, this narrow distinction once settled is maintained, and that insufficiency means undetermined, not immediate impossibility of relief. The determination concerning the ruling serving as the grounds for suspension of execution lies outside the scope of this section.
4.6The Strongest Counterargument and the Answer
In such a scene, one must ask what change has occurred merely from the fact that two persons filed actions with the court. That is, the question whether execution stops when an action contesting execution is filed is here first given concrete form.
The provision answering this question is found in Article 46 of the Civil Execution Act. Paragraph (1) thereof declares: "An action for objection shall not affect the continuation of compulsory execution." The subject of this text is an action for objection under Articles 44 and 45, the act is the filing of the action, and the condition is the situation in which compulsory execution is continuing. In other words, this provision states that no effect arises upon the progress of execution merely by the filing of an objection to the enforcement of a claim or an action for objection to the granting of an execution clause.
This text and the conclusion of this section interlock. The determination that the receipt of an action for objection cannot be treated as a ruling on suspension of execution is precisely the result of that connection. Here, the filing of an action and the suspension of execution must be distinguished as two separate stages. The former is the act of submitting the dispute to the court; the latter is a ruling that produces the effect of stopping the progress of the act of execution agency. From this distinction arises the definition of the absence of automatic suspension, that is, the state in which execution does not stop merely by the filing of an action. The reason for the distinction is that the filing of an action does not automatically draw in the effect of suspension.
The sharpest charge against this distinction is this: the subdivision of the means of objection imposes an excessive burden of choice on the right holder before imminent execution. That is, the heart of the loss is the point that relief may be delayed on account of the cost of seeking a separate suspension. If execution continues even though B and C have filed actions, the risk that the subject matter is disposed of or delivered in the meantime must be borne as it is. The circumstance that the right holder's inconvenience grows does not erase the significance of the separate channel for seeking a suspension ruling.
In this scene, although it is determined what rights B and C each assert, it is not determined what rulings were rendered. B's assertion of payment and C's assertion of ownership are disputes distinguished as concerning the claim itself, a transfer, or third-party property, and only by filing the action for objection matching that distinction and obtaining the necessary suspension ruling does one reach the stage of exclusion of unlawful or unjust execution and provisional suspension. Yet, among the records termed the objection complaint, the materials on extinction of a right or ownership, the execution title, and a suspension or revocation ruling, unless a suspension ruling is confirmed, one remains in the case where, there being no ruling serving as the grounds for suspension of execution, no effect of stopping the current execution has arisen. Where the dispute is not specified as concerning the claim itself, a transfer, or third-party property, its application itself remains undetermined.
In sum, the conclusion permitted by this section does not treat the mere fact of filing an action as giving rise to the effect of suspension of execution. Conversely, this section does not permit denying a suspension on the sole basis of the fact of reception where a suspension ruling has nevertheless been rendered. The absence of automatic suspension is a request to view the filing of an action and the suspension ruling separately, and where the materials are undetermined, they are left undetermined and not declared impossible of relief.
4.7The Link to the Application and the Dispositive Part
This is a synthetic scene and not a reproduction of an actual case. In this scene, to hold that the enforcement officer's progress stops merely from the fact that an action for objection has been filed with the court is to misunderstand the state of the attachment procedure already commenced. Premised on the determination of the preceding section that the receipt of an action for objection cannot be treated as a ruling on suspension of execution, this section asks whether the filing of an action and the stopping of execution each require different requirements. When an action contesting execution is filed, does execution stop?
The statutory provision answering this question is Article 46, paragraph (1) of the Civil Execution Act. This provision declares: "An action for objection under Articles 44 and 45 shall not affect the continuation of compulsory execution." (Civil Execution Act Article 46). In this text, the subject is the party who filed an objection to the enforcement of a claim and an action for objection to the granting of an execution clause, the act is the filing of that action, and the condition is the state in which compulsory execution is already continuing. The effect prescribed by the statutory provision is that the filing of such an action does not affect the progress of execution, and this is left as a question separate from whether execution is suspended. This paragraph deals only with the procedural effects of the filing of an action under the law of civil procedure, and does not explain the requirements of an action for objection or the effect of a judgment, to be dealt with in other paragraphs.
The above text and the conclusion confirmed earlier stand together only when the stage of the act of litigation of filing an action is distinguished from the stage of the act of execution of an order of suspension. The former is the submission of the dispute to the court seeking its determination; the latter is a separate disposition by which the act of execution agency stops the current progress. Whether it be an action for objection to the granting of an execution clause or an objection to the enforcement of a claim, what Article 46, paragraph (1) provides is the point that compulsory execution is not suspended merely by the filing of that action. Accordingly, even if B or C files an action contesting on their respective grounds, one cannot hold that the attachment is released or the execution held in abeyance merely from the fact of its reception. The conclusion that no effect arises upon the progress of execution merely by the filing of an objection to the enforcement of a claim or an action for objection to the granting of an execution clause follows precisely from this distinction.
A counterargument is raised that this distinction is excessively harsh. Because cost and time are incurred from the filing of an action for objection until a separate suspension is sought, the relief of the right holder is delayed before imminent execution. The burden of choice of having to furnish grounds for suspension for each subdivided means of objection may operate as a substantive loss, and where a sale or delivery has already proceeded, there may arise cases in which the filing of the action itself becomes meaningless. Such inconvenience is not erased. If the requirements and effects of the two procedures are combined arbitrarily, the result is that execution is mistaken for having stopped without a suspension order, and this would confer an effect not contemplated by the statutory provision.
In the synthetic scene of A, B, and C, the facts corresponding to this question are only two: the raising of the dispute and the continuation of the execution. Debtor B contests on the ground of extinction of the claim due to payment, and third party C contests on the ground of ownership of the subject matter, but the execution procedure over the attached property continues. Since the dispute is not specified as concerning the claim itself, a transfer, or third-party property, the determination is made only within the range in which the definition of the absence of automatic suspension applies. Whether an act of execution already performed is also revoked cannot be determined from this scene either.
To file an action means only that the court will examine that dispute; it does not mean that the act of execution agency stops the execution. Accordingly, this section's determination ends with confirming the absence of automatic suspension, that is, the state in which execution does not stop merely by the filing of an action. This section does not permit either extending by analogy the point that only upon obtaining a ruling serving as the grounds for suspension is exclusion of unlawful or unjust execution and provisional suspension constituted, or conversely leading to the conclusion that an action for objection is useless.
4.8The Scope This Section Undertakes
The fact that, although B and C each contest the execution on different grounds, the actual procedure is in motion is the starting point of the present issue.
As the source text for answering this question, Article 46 of the Civil Execution Act draws the line by providing that "an action objecting under Article 44 or Article 45 does not affect the continuation of compulsory execution" (Article 46 of the Civil Execution Act). This language takes the act of litigation of filing an action as a single ground and states what effect that ground has on the progress of compulsory execution. Here, compulsory execution refers to the execution procedure already commenced and ongoing, and the actions objecting under Articles 44 and 45 refer to the objection to the enforcement of a claim and the action objecting to the granting of an execution clause. Accordingly, the language expressly denies a link between the subject's act of filing the action and the progress of execution as the result.
Reading this language together with the settled conclusion, one must hold that the mere filing of an objection to the enforcement of a claim or an action objecting to the granting of an execution clause produces no effect on the progress of execution. Here two stages are distinguished. One is the stage of submitting to the court a claim contesting a right, thereby establishing the ground of the dispute; the other is the stage at which, independently of that filing, an effect arises that provisionally halts the execution currently in progress. The former alone does not reach the effect of the latter, and therefore the very fact that the complaint has been received cannot serve as the ground for a determination that execution has stopped. This is summarized as the absence of automatic stay, that is, a state in which execution does not stop merely by the filing of an action.
The counterargument that relief may be delayed because of the cost of seeking a separate stay targets the loss that this absence of automatic stay creates in reality. If execution continues even though the ground of the dispute has already gone to the court, a procedure for separately obtaining the primary goal of a stay determination remains behind, and in the meantime the condition of the objects of attachment or the subject matter may be shaken. Receipt of the complaint and a stay adjudication belong to different procedures, and if the former could substitute for the latter, the requirements and effects of a stay that the court demands through individualized determination would collapse. While not erasing the disadvantage of delayed relief identified by the counterargument, the answer that a stay effect arises merely by the filing of an action is not maintained within the settled scope.
Within the synthetic scene, the facts belonging to this question are only B's defense of payment, C's assertion of ownership, and the circumstance that execution continues regardless of those assertions. There is no material by which to determine whether B and C fall under an objection to the enforcement of a claim or an action objecting, nor are there any confirmed records that a stay adjudication was sought. Accordingly, what can be adjudicated from this scene is limited to the point that the current progress of execution does not stop merely by the filing of an action. If a DECISION to stay proceedings were confirmed, the state marked as the existing cancellation of attachment could change, and which stay determination was rendered remains undetermined.
The conclusion this section permits stops at distinguishing the difference between the filing of an action and a stay of execution. The mere fact that an objection to the enforcement of a claim and an action objecting to the granting of an execution clause have been filed cannot be taken to mean that execution has stopped, and to stop actual execution even for a moment, a separate stay adjudication must be obtained. Conversely, an interpretation that treats the action objecting as a stay DECISION destroys the conclusion of this section and is therefore not permitted. However, since the outcome of the actual case, the results of service or performance, and which stay determination was rendered have not been determined, the strength of the conclusion is limited to the conditional.
4.9Application of the Text of the Provisions and the Holdings of Precedents
In such a scene, if one believes that execution stops merely because an action has been filed, one has failed to distinguish the state of having placed the dispute before the court from the state in which the execution procedure has stopped. The question that now remains is whether execution stops when an action contesting execution is filed.
The relevant source text is Article 46(1) of the Civil Execution Act. Its language provides that "an action objecting under Article 44 or Article 45 does not affect the continuation of compulsory execution" (Article 46 of the Civil Execution Act). Here the action objecting refers to the objection to the enforcement of a claim and the objection to the granting of an execution clause, and the phrase "does not affect" is read to mean that the act of filing that action does not directly act upon the continued progress of compulsory execution. The subject is the party filing the action objecting, the act is the filing of the action, and the condition is the case where that action is an action objecting under Article 44 or Article 45.
This language limits the ground necessary for adjudicating the exclusion of unlawful or improper execution and provisional stay. The filing of an action and a stay decision are separate stages of determination, each with its own requirements, and the earlier stage does not substitute for the later. Since the relevant source text goes no further than defining the effect of filing an action, that language alone cannot produce the legal effect of provisionally halting execution. Accordingly, this language is not extended as a ground for provisional stay, and the reasoning of the judgment or items not dealt with in this section are not drawn upon to fill that gap.
The cost that this distinction immediately returns to the parties is heavy. The counterargument that relief is delayed by the cost and procedure of seeking a separate stay, and that in the meantime execution may proceed and cause the right holder to suffer a loss that cannot be undone, contains a valid concern. A disadvantage also remains that, as a result of subcategorizing the types of actions objecting, one must gauge which means to choose in the face of urgent execution. Even so, the receipt of an action objecting cannot be treated as a decision to stay execution, and the question is not answered by hurriedly erasing the gap between the two determinations.
Returning to the synthetic scene, B contests the claim itself on the ground of payment, while C seeks to block execution on the ground of ownership of the subject matter; yet execution continues. For both assertions, no fact can be confirmed in the scene that a stay adjudication halting execution took place. What is settled in the present scene is only the fact that execution continues even while the dispute is being pursued through an action, and the state in which execution does not stop merely by the filing of an action is called the absence of automatic stay. Whether the actual records will contain the complaint objecting, materials on extinction of rights or ownership, the execution clause, or stay or cancellation adjudications, and the results of service or performance, remain undetermined.
The conclusion permitted by the language of this section is narrow. Since the mere filing of an objection to the enforcement of a claim or an action objecting to the granting of an execution clause produces no effect on the progress of execution, it must not be held that unlawful or improper execution is excluded or provisionally stayed merely by the fact of filing the action. Conversely, a state in which only an action objecting has been filed without an adjudication serving as the ground for a stay must not be recorded as stayed, and unverified materials or calculated figures must not be used to fill that gap.
4.10Fine Distinctions Within the Stage
The premise stated earlier is accepted, namely that a third party may bring an action objecting against the creditor on the basis of ownership of the subject matter or of a right preventing transfer or delivery. Yet the mere fact that B and C have filed contesting actions has made the present attachment no easier. It must then be asked separately whether execution stops by the very fact that an action is pending before the court, or whether a separate determination is required. This question is the place for deciding why the filing of an action and a stay adjudication must be treated as different things.
The relevant language makes clear the starting point of that distinction. Article 46 of the Civil Execution Act provides: "(1) The actions objecting under Article 44 or Article 45 do not affect the continuation of compulsory execution." The subject of which this language speaks is the party filing an action objecting under Article 44 and Article 45, and the act goes no further than the filing of the action objecting. And what the language takes as the condition is only the fact of filing that action, drawing the line that such filing does not affect the continued progress of compulsory execution. What is settled here is the relationship between the filing of an action and the progress of execution, and one cannot read into this phrase the execution of dispositions dealt with in other provisions or the requirements of other objections.
Carrying this ground to the conclusion of this section, the determination stands that the mere filing of an objection to the enforcement of a claim or an action objecting to the granting of an execution clause produces no effect on the progress of execution. The reason the filing of an action and the decision on a stay must be read separately is that the former is a procedure for bringing the dispute before the court, whereas the latter is a separate determination that produces the effect of halting the execution currently in progress. The term "absence of automatic stay" summarizes this distinction and means the state in which execution does not stop merely by the filing of an action. The detailed distinctions within the same section are limited to the conditions marked as the case where it operates, the case where it is blocked, and the case that is undetermined, and no separate stage may be created that extends beyond these three kinds of cases.
This division leaves a distinct loss on the side asserting the right. Relief may be delayed because of the cost of seeking a separate stay, and the risk also remains that, in the meantime, objects already under attachment pass into other hands or are disposed of. B and C set their minds at ease by the fact that they have submitted their assertions to the court, but what the execution authority sees is the absence of a stay adjudication, and this gap is precisely the greatest inconvenience. The conclusion cannot, however, be changed in a way that erases this disadvantage. The receipt of an action objecting cannot be treated as a decision to stay execution, and the fact that a dispute has been received and the fact that a halting execution adjudication has been rendered remain different things.
Comparing only the facts presented in the synthetic scene, B's assertion of payment and C's assertion of ownership are both disputes over rights or conditions, but neither side appears to have obtained, merely by the action filed, an adjudication serving as the ground for a stay of execution. What can be compared as materials here is the complaint objecting, the materials on extinction of rights or ownership, the execution clause, and the presence or absence of a stay or cancellation adjudication. Accordingly, where an action objecting corresponding to the contested right, condition, succession, or third-party right has been filed and the necessary stay adjudication has also been obtained, this falls under the case where it operates; where only an action objecting has been filed and, there being no adjudication serving as the ground for a stay of execution, no effect arises to halt the execution currently in progress, this falls under the case where it is blocked. However, where it has not been determined whether the dispute concerns the claim itself, a succession, or a third-party subject matter, it is left undetermined and must remain so.
The conclusion this section permits is only the distinction within the three stated conditions, and it does not permit marking execution as stopped merely by the fact that an action objecting has been filed. Whether in the direction of treating the filing of an action and a stay adjudication as one bundle and omitting the distinction, or in the direction of erasing the distinction itself, it cannot be accepted so long as it produces the same result. Conversely, to declare at once that relief is impossible because the materials are insufficient to determine which condition applies also exceeds the scope of this section.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
In the foregoing stage of analysis, the question was asked whether execution stops when an action contesting execution is filed, and the answer to that question is carried over in a single sentence. Now the question is the condition that follows behind that answer. In cases where execution appears to stop merely by the fact that an action objecting has been filed, it must be examined whether the ground for that stoppage has actually been laid. What must be confirmed now is the gap between the fact that the action was filed and the result that execution has stopped.
Article 46(1) of the Civil Execution Act provides as follows: "(1) The actions objecting under Article 44 or Article 45 do not affect the continuation of compulsory execution." The subject of which this language speaks is the person who filed an action objecting under Article 44 and Article 45, the act is the filing of that action, and the condition is the case where compulsory execution continues to progress. What is confirmed here is only the language that no effect on the progress of compulsory execution arises merely by the filing of an action.
What that language indicates is the "absence of automatic stay," in other words, the state in which execution does not stop merely by the filing of an action. An action objecting is a procedure by which the person who filed the action seeks adjudication of the dispute over that person's right or assertion, and a stay of execution adjudication is a separate determination that suspends the progress of execution before that adjudication is rendered. That is why the two procedures must be distinguished. The former alone cannot substitute for the determination of the latter, and while the latter is absent, execution may continue.
The counterargument begins from the position of the person who filed the action. If, having already filed an action, one must separately seek a stay, the attendant cost and procedure overlap, and relief may be delayed in the face of urgent execution. This is a real inconvenience and may be a burden of choice too heavy for the right holder to bear, because receipt is the state in which the claim seeking adjudication has been brought before the court, while a decision to stay execution is a separate adjudication that commands the effect of halting execution. The possibility of delay identified by the counterargument is left in place, but the analysis does not proceed in the direction of fixing the stoppage upon the fact of receipt.
In the synthetic scene, the debtor B contests on the ground of payment, and the third party C asserts that the object of attachment is owned by C, yet execution continues. The present question is not what they assert, but whether, independently of those assertions, an adjudication serving as the ground for a stay of execution has been laid. B stands in the position of contesting the claim itself on the ground of payment, and C stands in the position of contesting as a third party on the ground of ownership of the subject matter. However, from the scene alone it has not been determined whether either dispute concerns the claim itself, a succession, or a third-party subject matter, nor is it stated how each party's complaint objecting or stay adjudication actually stood. These items remain undetermined.
Therefore, where only an action objecting has been filed, the state remains in which execution does not stop under the absence of automatic stay, and only where the necessary stay adjudication has also been obtained along with the action objecting does the path open by which the progress of execution stops. However, so long as the nature of the dispute is undetermined, no position can be assigned as to which condition applies. If there is a ground sufficient to reverse the state already marked as the cancellation of attachment, that ground must be a case in which a decision to stay proceedings has been confirmed.
4.12Conclusion Carried Over to the Next Section
It takes up only the situation in which, even after that action has been filed, execution remains as it was, and asks where the ground for stopping execution before judgment is to be found.
The provision corresponding to this question is Article 46 of the Civil Execution Act. Article 46(1) draws the line by declaring that "an action of objection shall not affect" the continuation of compulsory execution (Article 46 of the Civil Execution Act). The subject of this text is the party who has filed an action of objection under Article 44 or Article 45; the act is the filing of the action; and the condition of the result is the continuation of compulsory execution — in each of these respects the structure is even. What the provision targets is the filing of the action itself, and any other adjudication that alters the course of execution lies outside the wording of this paragraph.
The line linking this provision with the conclusion confirmed earlier is the concept of the absence of an automatic stay. Here, the absence of an automatic stay means a state in which execution does not stop merely by the filing of the action. Since the mere filing of an objection to the enforcement of a claim or an action of objection to the granting of the execution clause has no effect on the progress of execution, the fact of filing the action and the fact of stopping execution must be placed at separate steps. To read it in such a way that one substitutes for the other would be, in effect, to manufacture by force an effect of stopping execution from nothing more than the indication that one is already contesting the matter before the court.
That distinction carries its price, and so counterarguments must be heard to the end. Relief may be delayed because of the cost of seeking a separate stay. If, in the face of an urgent execution, one chooses the procedure of filing an action of objection and then seeking a stay again, the burden of choice falls more heavily on the party, and in the meantime the right holder may already suffer the disadvantage of execution. One cannot give priority to the convenience obtained by erasing the line the wording has drawn; accordingly, the conclusion is maintained as it stands, with the risk of delayed relief left in place.
Taking out only the facts of the synthetic scene that correspond to this question: the debtor B contests on the ground of performance, and the third party C asserts that the object of attachment is his own property, yet execution continues. The condition that B and C may each file an action of objection on their respective grounds touches upon the premise already accepted, but the fact that execution stopped by that filing alone is not contained in the scene. Conversely, the fact that execution continues irrespective of the filing of the action likewise accords with the absence of an automatic stay. However, since whether the complaint of objection, the materials on extinguishment of rights or ownership, the execution clause, or a judgment of stay or revocation — all of which are to be verified on the record — have actually been obtained remains unconfirmed, that part is left undetermined.
Accordingly, the conclusion this section permits extends only to the point that the filing of an action of objection is not itself a ground for stopping the progress of execution, and it does not permit any determination whether a judgment of stay or revocation was also rendered. One must neither speak as though execution has stopped by the fact of filing the action, nor proceed so far as to regard the filing of the action itself as meaningless on the ground that a judgment of stay is required. What is the ground for stopping execution before judgment?