Summary
An enforcement title for the payment of money and the requirements for commencement must be satisfied, and the exclusion of titles bearing a declaration of provisional execution must be observed.
1.1The Standard by Which the Path Opens
The title on which one may execute and the title with which one may require disclosure of assets are not entirely the same. The standard was confirmed earlier that a stay of proceedings and the revocation of enforcement dispositions already carried out must be recorded separately and that the actual scope of the decision must be followed, but the question revisited here is different. Creditor A holds a title ordering payment of money, yet does not know what property available for execution Debtor B has. In this scene, the title that Creditor A may take as the basis for compulsory execution and the qualification for entering the information procedure that requires disclosure of assets cannot be treated as the same. The question is whether the mere circumstance that the door to execution has opened can be said to carry one across the threshold of the information procedure as well.
The statutory text that answers this question is Article 61 of the Civil Execution Act. Paragraph (1) thereof provides that a creditor who may commence compulsory execution on the basis of an enforceable title for payment of money may file with the court at the place of the debtor's general forum an application requiring the debtor to disclose assets (Civil Execution Act, Article 61). The proviso to the same paragraph excludes a judgment bearing a declaration of provisional execution under Article 213 of the Civil Procedure Act, or an enforceable title bearing a declaration of provisional execution which has force of execution by application mutatis mutandis of the same Article (Civil Execution Act, Article 61). Paragraph (2) of the same Article requires that an authenticated copy with force of execution and the documents necessary for commencing compulsory execution be attached to the application (Civil Execution Act, Article 61). What is fixed here is that the subject is a creditor holding an enforceable title for payment of money, the act is an application requiring disclosure of assets, and the conditions are the money purpose, the possibility of commencement, and the completeness of the attached documents.
On the basis of this text, the entrance to this remedy is examined in two tiers. The first tier is the tier of application qualification, which asks whether compulsory execution can be commenced on the basis of an enforceable title for payment of money, and whether the authenticated copy with force of execution and the documents necessary for commencement required by paragraph (2) have been prepared. The second tier is the tier of exclusion, which checks whether the title is one bearing a declaration of provisional execution that the proviso excludes. Where the grounds for inquiry and the target institutions are specified, this route is open. The determination that one may execute and the determination that one may require disclosure of assets correspond to different requirements, so the former determination cannot simply be carried over into the latter.
The loss pointed to by the view that criticizes this distinction sharply is plain. If a creditor who does not know the property is handed only an enforceable title, its practical benefit is small, and there is the concern that the value of protecting the debtor's information may rather assist the concealment of assets or shift search costs onto the creditor. That disadvantage cannot be taken lightly. Even so, the preceding determination is not shaken. Possibility of provisional execution cannot be automatically converted into qualification to apply for disclosure of assets. The existence of a declaration of provisional execution is merely a circumstance that confers force of execution provisionally, and the proviso to Article 61 draws a line preventing entry into the information procedure on that circumstance alone.
Contrasting these conditions with this scene, what divides the determination is whether Creditor A's title is an enforceable title for payment of money, and whether that title takes the form of one bearing a declaration of provisional execution under Article 213 of the Civil Procedure Act and having force of execution. If it is the latter, the title falls under the proviso, the threshold for an application for disclosure of assets does not open, and one does not even reach a state in which the type of enforceable title, the progress of the asset disclosure, the list of property, the grounds for inquiry, the target institutions, and the reply can be kept on record. If, from a state of provisional execution alone, the title is replaced by a final enforceable title capable of disclosure, the threshold of the information procedure is assessed anew. However, where the scope of the reply and whether any target institution of inquiry has been omitted cannot be known, that part remains undetermined. The circumstance that there is no material does not mean that relief is impossible.
The conclusion permitted in this section is that no application requiring disclosure of assets can be made on the basis of a title bearing a declaration of provisional execution alone, and that the entrance to this remedy opens only where one holds an enforceable title for payment of money, meets the commencement requirements, and does not fall within the proviso. Conversely, to hold that the mere fact that an enforceable title exists permits requiring the debtor to disclose assets is a conclusion this text does not allow. Whether the demanded performance, the parties, and the conditions are specified in the statement of the claim, whether the right of the chosen action can be defended, and whether the grounds for inquiry and the target institutions have been specified are matters to be verified at the time of application.
1.2The Conditions That Block Relief
Disclosure of assets means a procedure requiring the debtor to reveal a list of property. Accordingly, a stay of proceedings and the revocation of enforcement dispositions already carried out must be recorded separately, and one must follow the actual scope of the decision. He stands before the door of compulsory execution yet does not know what is to be executed against. What is asked in this scene is simple. With nothing more than a judgment bearing only a declaration of provisional execution, may Creditor A require Debtor B to disclose assets? If so, what conditions open that door, and on what grounds does the route of relief close?
Article 61 of the Civil Execution Act sets out where that door lies as follows. "①A creditor who may commence compulsory execution on the basis of an enforceable title for payment of money may file with the court at the place of the debtor's general forum an application requiring the debtor to disclose assets. Provided, however, that this shall not apply where the enforceable title is a judgment bearing a declaration of provisional execution under Article 213 of the Civil Procedure Act, or an enforceable title bearing a declaration of provisional execution which has force of execution by application mutatis mutandis of the same Article. ②An application under paragraph (1) shall have attached thereto an authenticated copy with force of execution and the documents necessary for commencing compulsory execution." The subject indicated by this text is a creditor who may commence compulsory execution on the basis of an enforceable title for payment of money. The act is an application requiring disclosure of assets, made to the court at the place of the debtor's general forum.
The qualification required by the main clause of Article 61 (1) and the exclusion prescribed by the proviso to the same paragraph are distinct stages of determination. The main clause designates as the applicant a creditor who holds an enforceable title for payment of money and can commence compulsory execution. The proviso removes from its scope a judgment bearing a declaration of provisional execution under Article 213 of the Civil Procedure Act, or an enforceable title bearing a declaration of provisional execution which has force of execution by application mutatis mutandis of the same Article. Even if Creditor A attaches an authenticated copy with force of execution and the documents necessary for commencing compulsory execution, if the title falls within one excluded by the proviso, the same application does not proceed. What Creditor A secured above is not the qualification of the main clause but the condition of exclusion set by the proviso. So long as this exclusion remains, if any one of the statutory requirements is not satisfied, the route of relief closes. Only when the main clause and the proviso are read together is the possibility of commencement determined.
When this distinction is maintained, the greatest inconvenience falls to the creditor. If execution alone is permitted while the property is unknown, the practical benefit is small. This is precisely the point at which the criticism gains force that protecting the debtor's information may assist the concealment of assets and shift search costs onto the creditor. A's title leaves the door to execution open while leaving the window for finding assets shut, and as a result he bears the burden of searching as it stands. This loss cannot be taken lightly. Yet that inconvenience does not topple the exclusion fixed by the statutory text. Permission to execute is a determination standing apart from the application qualification for this information procedure. The difficulty of searching that remains with the creditor remains as it is within the scope set by the proviso to Article 61 (1).
The facts that can be confirmed in this scene are only the two stated above. However, it is not settled whether that title is a judgment bearing a declaration of provisional execution under Article 213 of the Civil Procedure Act, or an enforceable title bearing a declaration of provisional execution which has force of execution by application mutatis mutandis of the same Article. Nor does the scene confirm whether the requirements of the main clause of Article 61 (1) and the attached documents of paragraph (2) have been prepared, or whether additional statutory grounds for inquiry exist. On this record alone, it cannot be determined whether the statutory route of access to property information has opened or closed. The other conditions cannot be determined from the scene and remain undetermined.
Here the boundary of the conclusion is made clear. The conclusion permitted is that where one holds only a provisional-execution title, which is excluded from disclosure of assets, or where no additional statutory ground for inquiry exists and the information procedure therefore cannot be used, the route of relief closes if any one of the statutory requirements is not satisfied. The route spoken of here means the statutory route of access to property information, and does not mean the results of actual payment, delivery, or recovery. The conclusion not permitted is an interpretation that converts a provisional-execution judgment into the qualification to apply for disclosure of assets merely because the creditor does not know the property. If the scope of the reply and whether any target institution of inquiry has been omitted cannot be known, that is an undetermined circumstance and does not immediately mean that relief is impossible. The determination of this section is bound to whether the conditions set by the text are satisfied.
1.3The Boundary That Remains When There Is No Data
The preceding stage states only that a stay of proceedings and the revocation of enforcement dispositions already carried out must be recorded separately and that one must follow the actual scope of the decision. The question handled here appears close but is different. Disclosure of assets is a procedure requiring the debtor to reveal a list of property; if A, standing at the entrance to this procedure, holds nothing more than a judgment bearing a declaration of provisional execution, must the court accept his application?
The statutory text answering this question is found in Article 61 of the Civil Execution Act. It provides: "①A creditor who may commence compulsory execution on the basis of an enforceable title for payment of money may file with the court at the place of the debtor's general forum an application requiring the debtor to disclose assets. Provided, however, that this shall not apply where the enforceable title is a judgment bearing a declaration of provisional execution under Article 213 of the Civil Procedure Act, or an enforceable title bearing a declaration of provisional execution which has force of execution by application mutatis mutandis of the same Article." (Civil Execution Act, Article 61). Here the subject is a creditor holding an enforceable title for payment of money, and the act is an application requiring disclosure of assets to the court of the general forum. The conditions jointly require both that compulsory execution be capable of being commenced and that the title not be one bearing a declaration of provisional execution and having force of execution.
This text divides, within a single provision, the threshold of qualification to apply and the cases in which, even at that threshold, one is exceptionally blocked. Since A holds a money-payment title, the requirement of being able to commence compulsory execution itself appears to be satisfied. Yet the proviso to the same provision expressly excludes a judgment bearing a declaration of provisional execution under Article 213 of the Civil Procedure Act, or a title bearing a declaration of provisional execution which has force of execution by application mutatis mutandis thereof. If the fact that execution can be commenced and the qualification to require disclosure of assets are set as the same, the distinction the proviso separately draws is erased. Accordingly, if the judgment A holds bears only a declaration of provisional execution, then even though another route to force of execution may be open, the threshold for an application for disclosure of assets does not open.
With this distinction drawn, the frustration suffered by the creditor who does not know the property remains as it is. A does not even know whether B's property exists anywhere, and having received only permission to commence compulsory execution, it is difficult to gauge the practical benefit of execution. The party holding the information is the debtor, and the cost of information appears to be shifted onto the creditor. The inconvenience of the creditor's search cost is no ground for nullifying the exception the legislature left in the proviso, and the author's judgment likewise stands on the side that does not permit that automatic substitution.
Items that cannot be specified from the foregoing conditions of this section remain separately. No material has been given as to how far the reply to an inquiry extends, or whether any target institution of inquiry has been omitted. The fact that such material is absent does not lead to the conclusion that the information procedure will never open. Matters for which the materials of determination are not specified are left undetermined, distinguished from impossibility. Even if one speaks of effectiveness here, it is bound to the stage of asking whether the statutory route of access to property information is open, and is limited to cases where one holds a money title permitting an application for disclosure of assets, has met the commencement requirements, and has specified the grounds for inquiry and the target institutions. Where one has only a provisional-execution title, or where no additional statutory ground for inquiry exists, that route cannot be used.
The conclusion this section permits is the distinction that no application for disclosure of assets can be made on a judgment bearing only a declaration of provisional execution, and, separately from that, that matters which cannot be known, such as the scope of the reply or whether any target institution of inquiry has been omitted, are left undetermined. What this section does not permit is the substitution whereby the possibility of provisional execution immediately becomes the qualification for the information procedure.
1.4The Records Needed for Determination
In this situation, disclosure of property is a procedure that requires the debtor to reveal a list of property, and whether Creditor A may demand that procedure depends on the nature of the enforcement title. Having confirmed in the preceding stage that the stay of proceedings and the revocation of enforcement measures already taken must be recorded separately and that the actual scope of the decision must be followed, the present stage separately poses the problem of the records at the entrance that lies next. That is to say, it is the question whether an application for disclosure of property may be filed on the basis of a judgment for provisional execution alone, and what records must be laid down in order to determine eligibility to file. As to that question, one begins by confirming the type of enforcement title.
The text corresponding to this question is found in Article 61 of the Civil Execution Act. Here the subject is a creditor holding an enforcement title for the payment of money, the act is an application for a demand for disclosure of property, and the condition is that compulsory execution may be commenced on the basis of that title. This text also points to the court with jurisdiction over the application, but the present stage addresses only the threshold of eligibility to apply.
The proviso to paragraph (1) of the same Article attaches one exception to that threshold. A judgment to which a declaration of provisional execution is appended pursuant to Article 213 of the Civil Procedure Act, or an enforcement title that has force of execution with a declaration of provisional execution appended pursuant to the application mutatis mutandis of the same Article, is placed outside the scope of permission stated above (Article 61 of the Civil Execution Act). Accordingly, where one applies relying solely on a title bearing the element of a declaration of provisional execution, eligibility to apply is not recognized, even though the purpose of payment of money and the commencement requirement demanded by the text are satisfied. The author reads this exception as a fixed boundary of eligibility to apply, and does not treat the door of execution opened by provisional execution and the door of information that disclosure of property requires as one and the same. The stage determination is made solely on the basis of the materials recorded in the type of enforcement title, the course of the disclosure of property, the list of property, the reason for inquiry, the target institution, and the reply, and does not fill gaps in the record by conjecture.
The loss that this distinction leaves to the creditor is concrete. Even though the path to commence execution lies open, Creditor A, who does not know the property of Debtor B, cannot determine what to seize, and the cost and time of the search fall entirely to the creditor's own share. For that reason, the criticism that the exclusion, which places information protection in the foreground, aids the concealment of property and shifts its cost to the creditor, gains force. Nevertheless, the possibility of provisional execution cannot be automatically substituted for eligibility to apply for disclosure of property as a means of filling the shortfall in practical benefit that this criticism targets. The disadvantage identified by the counterargument remains as it is, but the exclusion that the text places on a title bearing a declaration of provisional execution is observed as it stands in the determination of eligibility to apply.
In the synthetic scene, the facts relevant to this question are only the nature of the title and the absence of information on the property of Debtor B. Yet this scene does not determine whether a declaration of provisional execution is appended to that title, whether it is a final and conclusive judgment, or the point in time at which the course of the disclosure of property and the list of property are recorded. The reason for inquiry, the target institution, and the reply have likewise not been set, so the scope of the reply and whether any inquiry target has been omitted cannot be known. Therefore, this scene alone cannot fix eligibility to apply or the stages that follow; if the state of provisional execution alone changes into a final and conclusive title capable of disclosure, the threshold of the information procedure is assessed anew.
The conclusion permitted is a narrow one: an application for disclosure of property cannot be filed on a judgment for provisional execution alone, and eligibility to apply is determined only where an enforcement title for the payment of money and the commencement requirement are in place and the exclusion for the declaration of provisional execution is avoided. Conversely, eligibility to apply does not mean that property is at once discovered or that recovery is reached, and whether the list is submitted and the outcome of the inquiry both remain undetermined. The mere circumstance that no material exists cannot warrant the categorical statement that the legal route is closed.
1.5Circumstances That Change the Decision
In this scene, the issue is whether an application for disclosure of property may be filed on a judgment for provisional execution alone. The condition under which one designated change overturns the existing stage determination must be examined together with it.
The text corresponding to this question is found in Article 61 of the Civil Execution Act. Paragraph (1) provides that a creditor who is capable of commencing compulsory execution on the basis of an enforcement title for the payment of money may file an application, excepting, however, a judgment to which a declaration of provisional execution is appended pursuant to Article 213 of the Civil Procedure Act, or an enforcement title that has force of execution with a declaration of provisional execution appended pursuant to the application mutatis mutandis of the same Article. Paragraph (2) provides that an authenticated copy with enforcement power and the documents necessary to commence compulsory execution must be attached to the application under paragraph (1).
In this text the subject is a creditor capable of commencing compulsory execution on the basis of an enforcement title for the payment of money, the act is an application demanding disclosure of property, and the condition is the furnishing of an enforcement title for the purpose of payment of money together with the required documents. A title bearing a declaration of provisional execution remains an object of exclusion even if it meets these conditions. Since disclosure of property means a procedure requiring the debtor to reveal a list of property, the title that permits execution and the title that permits a demand for the list must be distinguished and adjudged separately.
If execution alone is permitted while the property remains unknown, the practical benefit is slight, and the counterargument that the debtor's protection of information may aid the concealment of property and shift the search costs to the creditor is the most persuasive. Yet even while acknowledging that disadvantage, the possibility of provisional execution cannot be automatically substituted for eligibility to apply for disclosure of property. So long as the condition of an application furnished with an authenticated copy with enforcement power and the documents necessary for commencement remains, the exclusion for the declaration of provisional execution is observed as it stands in the text.
In the synthetic scene, Creditor A holds a title for the payment of money but does not know the property of Debtor B. Yet so long as that title remains a judgment bearing a declaration of provisional execution, it cannot be regarded as having crossed the threshold of the information procedure, and this is confirmed only through the records of the type of enforcement title, the course of the disclosure of property, the list of property, the reason for inquiry, the target institution, and the reply. Once this change is confirmed, the existing determination of blocking and effectiveness is discarded and the assessment is redone from the stage onward, while the scope of the reply and whether any target has been omitted remain undetermined.
The conclusion this section permits is the narrow distinction that, where only a title for provisional execution exists, an application for disclosure of property is excluded; what it does not permit is a determination that substitutes the possibility of provisional execution for eligibility to apply. This does not mean that submission of the list of property or actual recovery results will follow at once, even after the change to a title on which an application may be filed.
1.6The Strongest Counterargument and the Answer
In such a state, if the enforcement title is already in hand yet even the whereabouts of the property are unknown, the issue at this point is what remains for the creditor. One must examine where the difference between these two titles places the threshold for obtaining property information.
The basis for answering this question lies in Article 61 of the Civil Execution Act. Here the subject of the application is a creditor holding an enforcement title for the payment of money, the act is an application for a demand for disclosure of property, and the condition is holding a position from which compulsory execution may be commenced.
According to that text, a title bearing a declaration of provisional execution falls outside the grounds for application. The author reads this distinction not as a mere difference of form but as a difference of qualification. Disclosure of property is a procedure requiring the debtor to reveal a list of property, and the key that opens the door of that procedure is an enforcement title for the payment of money together with the commencement requirement. Article 61 itself set down this threshold. Accordingly, a title that has force of execution merely by bearing a declaration of provisional execution cannot fit that key. The author's conclusion follows from this.
The strongest counterargument targets the question of practical benefit. Creditor A holds a title ordering the payment of money but does not know the property of Debtor B; if the door of disclosure of property is closed, then even when execution is permitted, there is no knowing what may be seized. This counterargument highlights that the debtor's protection of information may rather aid the concealment of property and shift the search costs to the creditor. The actual inconvenience must not be erased. Even so, the qualification requirements fixed by the text are not replaced by the magnitude of the practical benefit. The answer the author has fixed does not change.
All that can be confirmed in this scene is the character of the title and the creditor's lack of knowledge. The type of enforcement title, the course of the disclosure of property, the list of property, the reason for inquiry, the target institution, and the reply have been fixed as items of record, but no actual records have been collected. Accordingly, what is contained in the list of property of Debtor B and which institution sends a reply cannot be determined from this scene. If, however, the state of holding only a title bearing a declaration of provisional execution changes into a final and conclusive title capable of disclosure, the threshold of the information procedure is assessed anew. At present, while this change has not occurred, eligibility remains bound as it is.
The conclusion this section permits is narrow. If one holds an enforcement title for the payment of money together with the commencement requirement and does not fall under the exclusion for the declaration of provisional execution, eligibility to apply for disclosure of property is established; in the opposite case, it is not. Eligibility does not arise from the mere fact that the practical benefit is slight, nor does it arise from a declaration of provisional execution alone. Where the scope of the reply and any omission of inquiry targets cannot be known, that portion remains undetermined.
1.7The Link to the Application and the Dispositive Part
Taking up the conclusion from the preceding section—that the possibility of provisional execution cannot be automatically substituted for eligibility to apply for disclosure of property—the present question is narrowed to whether an application for disclosure of property may be filed on a judgment for provisional execution alone. Disclosure of property means a procedure requiring the debtor to reveal a list of property; in the scene where Creditor A holds a title ordering the payment of money but does not know the executable property of Debtor B, the issue is how far the entrance to this procedure stands open.
Article 61 of the Civil Execution Act places the requirements and the exclusions for an application for disclosure of property within a single text. Paragraph (1) provides that a creditor who is capable of commencing compulsory execution on the basis of an enforcement title for the payment of money may file an application with the court at the location of the debtor's ordinary forum. It excepts, however, a judgment bearing a declaration of provisional execution pursuant to Article 213 of the Civil Procedure Act, or an enforcement title that has force of execution with a declaration of provisional execution appended pursuant to the application mutatis mutandis of the same Article. Paragraph (2) also requires that an authenticated copy with enforcement power and the documents necessary for the commencement of compulsory execution be attached to the application.
This text requires eligibility to apply to be determined in two stages. At the first stage, one examines whether the applicant holds an enforcement title for the payment of money and is capable of commencing compulsory execution; at the second stage, one considers whether the enforcement power arising from the declaration of provisional execution falls within the ground for that qualification. A title that has force of execution by bearing a declaration of provisional execution falls within the ground of exclusion specified by the text, and so treating a title standing on provisional execution alone as conferring eligibility to apply runs counter to the text. In other words, the possibility of provisional execution and the qualification for disclosure of property are two different determinations.
The point most fiercely targeted by this distinction is the creditor's loss of practical benefit. If execution alone is permitted while the property remains unknown, the creditor cannot find an object on which to attempt execution, and a criticism may be raised that the debtor's protection of property information becomes in effect a shield for the concealment of property and that the search costs fall back upon the creditor. Even so, the standard the author has set does not waver. The possibility of provisional execution cannot be automatically substituted for eligibility to apply for disclosure of property, and the threshold of the information procedure cannot be lowered by circumventing the exclusion fixed by the statutory text. While the weight of the criticism is acknowledged, the form of the answer is the refusal of automatic substitution.
Returning to this scene, Creditor A holds a title for the purpose of payment of money, but the type of that title, whether the requirements for commencing compulsory execution are met, and the course of the application for disclosure of property are not made explicit in this scene. Accordingly, this scene alone cannot determine whether Creditor A is in fact eligible to apply for disclosure of property. One thing alone is determined: if the creditor remains with a title that has force of execution solely by bearing a declaration of provisional execution, eligibility to apply is not opened by that title alone. The record leaves the type of enforcement title, the course of the disclosure of property, the list of property, the reason for inquiry, the target institution, and the reply, but leaves the scope of the reply and any omission of inquiry targets undetermined.
The conclusion this section permits is clear. The entrance to disclosure of property opens when one holds an enforcement title for the payment of money together with the requirements for commencing compulsory execution and does not fall under the exclusion for the declaration of provisional execution. Conversely, what this section does not permit is a determination that eligibility to apply for disclosure of property arises from the single fact that provisional execution is possible. The creditor's plight in not knowing the property remains a circumstance, but it cannot make good the qualification requirements in their stead.
1.8The Scope This Section Undertakes
In a situation where one must find an object of execution against a debtor whose property is unknown, the threshold of the procedure that compels the disclosure of the location of the property, separate from the title of execution that permits commencement of execution, is at issue. The preceding analysis concluded that a title bearing a declaration of provisional execution alone is insufficient to demand property disclosure. The stay of proceedings and the revocation of execution dispositions already taken must be recorded separately, and the actual scope of the decision must be followed. In this situation, the question is what significance attaches to the fact that the title that permits execution and the title that permits demanding property disclosure are not entirely the same. Can property disclosure be applied for on the basis of a judgment with a declaration of provisional execution alone?
Article 61 (1) of the Civil Execution Act provides that "a creditor who may commence compulsory execution on the basis of a title of execution for the payment of money may file an application demanding that the debtor disclose his or her property with the court of the locality of the debtor's general forum," and the proviso to the same paragraph excludes a title bearing a declaration of provisional execution (Civil Execution Act, Article 61). The actor indicated by this text is the creditor who may commence compulsory execution on the basis of a title of execution for the payment of money, and the act is the filing of an application demanding the debtor's property disclosure with the court of the locality of the debtor's general forum. The conditions are a title of execution for the payment of money and satisfaction of the requirements for commencing compulsory execution, while a judgment bearing a declaration of provisional execution, or a title of execution that has force of execution by virtue of a declaration of provisional execution attached pursuant to the application mutatis mutandis of the same Article, is excluded by the proviso.
Connecting the above text with the conclusion of this section, the assessment of standing to file an application for property disclosure must consider the type of title of execution together with the requirements for commencing compulsory execution, and a declaration of provisional execution alone cannot clear that threshold. Here, property disclosure means the procedure requiring the debtor to reveal a list of property, and it is a stage of assessment distinct from whether compulsory execution may be commenced. Enforceability denotes the basis on which one may proceed toward execution dispositions, whereas standing to apply for property disclosure denotes the qualification to draw out the debtor's property information through court procedure. That Article 61 (2) of the same Act requires an application to be accompanied by an authenticated copy with force of execution and the documents necessary for the commencement of compulsory execution likewise supports the distinction between these two requirements.
The loss brought by this distinction is clear. If execution alone is permitted while the property is unknown, the creditor A remains within the execution procedure without obtaining information, and the search costs are shifted to the creditor. The counterargument targets the point that the protection of the debtor B's information may rather serve as a channel facilitating the concealment of property. The judgment of this section defines the entrance to the legal channel for accessing property information, and for the channel to open, one must hold a monetary title that permits applying for property disclosure and satisfy the commencement requirements, and must specify the grounds for inquiry and the target institutions. Where one holds only a title with provisional execution, or where no additional statutory ground for inquiry exists so that the information procedure cannot be used, that entrance is closed.
In this scene, creditor A holds a title ordering the payment of money and does not know of any property of debtor B subject to execution, and the practical benefit of the legal channel for accessing property information is thus revealed. However, this scene alone does not establish whether A's title bears a declaration of provisional execution or whether A has a title of execution for payment of money and meets the requirements for commencing compulsory execution, so the permissibility of an application for property disclosure remains undetermined. What must be recorded is the type of title of execution, the course of the property disclosure, the list of property, the grounds for inquiry, the target institutions, and the replies; where the scope of the replies and whether any inquiry targets were omitted cannot be known, this too remains undetermined.
The conclusion permitted by this section is that, in order to be able to apply for property disclosure, one must be able to commence compulsory execution on the basis of a title of execution for the payment of money, and that a title bearing a declaration of provisional execution is excluded from that category. The conclusion not permitted is the interpretation that merges the two qualifications into one, as in the notion that if execution alone is possible, property disclosure can immediately be demanded. The significance of whether a list of property is submitted, the scope of property inquiry, the court's duty of investigation, the effect of the register of persons in default, and the assessment of impossibility of execution where there are no inquiry results are not matters addressed by this section.
1.9Application of the Text of the Provisions and the Holdings of Precedents
After the previous stage concluded that property disclosure cannot be demanded on the basis of a judgment bearing a declaration of provisional execution alone, the question that now remains is the text that creates that threshold itself. In this scene, the question is whether A can open the legal channel for accessing property information.
The provision in question is Article 61 of the Civil Execution Act. Its paragraph (1) provides as follows: "① A creditor who may commence compulsory execution on the basis of a title of execution for the payment of money may file an application demanding that the debtor disclose his or her property with the court of the locality of the debtor's general forum. Provided, that this shall not apply where the title is a judgment bearing a declaration of provisional execution under Article 213 of the Civil Procedure Act, or a title of execution that has force of execution by virtue of a declaration of provisional execution attached pursuant to the application mutatis mutandis of the same Article." In this text, the applicant is the creditor, the act is the filing of an application demanding property disclosure, and the condition is that the creditor must be able to commence compulsory execution on the basis of a title of execution for the payment of money (Civil Execution Act, Article 61).
The following paragraph (2) requires that "an application under paragraph (1) shall be accompanied by an authenticated copy with force of execution and the documents necessary for the commencement of compulsory execution" (Civil Execution Act, Article 61). These two paragraphs are directed at different stages. Paragraph (1) is the threshold of qualification, determining who may demand what; paragraph (2) is the requirement of form, determining in what documents that application must be made. In assessing the legal channel for accessing property information, the preceding qualification threshold must not be mixed with the succeeding documentary requirement. If the former is not satisfied, merely assembling the documents of the latter does not bring the application into existence.
The counterargument that the practical benefit is slight where execution is permitted while the property is unknown operates here with its greatest force. Since a declaration of provisional execution alone produces enforceability, compulsory execution is possible; but if the very procedure for finding the property is closed, the creditor bears the search costs and the protection of the debtor's information becomes a structure that aids the concealment of property. The author does not deny this loss, yet holds to the settled answer. Since the proviso to Article 61 (1) expressly excludes a title bearing a declaration of provisional execution, there is no ground for expanding the qualification beyond that text.
Contrasting only the facts used in the synthetic scene, whether creditor A's title is a title of execution for the payment of money, whether compulsory execution may be commenced, and whether it falls under a title bearing a declaration of provisional execution are not determined by this scene alone. However, a test that alters one condition is possible. Since the scope of the replies and whether any inquiry targets were omitted, absent from the same scene, cannot be known, the contents of the list of property or the presence or absence of inquiry results cannot be adjudged in this paragraph.
The conclusion permitted by this section is narrow. The text of the provision in question alone is used as the ground for assessing the legal channel for accessing property information, and only the text within that scope is applied. If extended to the reasons for the decision or to other paragraphs, this conclusion does not hold. Only the principle that one must satisfy a monetary payment title of execution and the commencement requirements and that the exclusion of titles bearing a declaration of provisional execution is maintained is settled, whereas whether the actual records were collected and the results of retrieval are not settled.
1.10Fine Distinctions Within the Stage
Then what remains when the information is unknown is only the type of title, and whether the channel that opens differs according to that type is the next question. What is to be asked now is not whether property disclosure can be applied for on the basis of a judgment with provisional execution alone, but what part must again be divided and adjudged within the legal channel for accessing property information.
The text in question is Article 61 of the Civil Execution Act. Its paragraph (1) provides that "a creditor who may commence compulsory execution on the basis of a title of execution for the payment of money may file an application demanding that the debtor disclose his or her property with the court of the locality of the debtor's general forum," and adds the proviso "provided, that this shall not apply where the title is a judgment bearing a declaration of provisional execution under Article 213 of the Civil Procedure Act, or a title of execution that has force of execution by virtue of a declaration of provisional execution attached pursuant to the application mutatis mutandis of the same Article" (Civil Execution Act, Article 61). This text specifies the applicant as a creditor holding a monetary payment title and the commencement requirements, the act as an application demanding property disclosure, and the court concerned as the court of the locality of the debtor's general forum. Paragraph (2) requires the application to be accompanied by "an authenticated copy with force of execution and the documents necessary for the commencement of compulsory execution" (Civil Execution Act, Article 61).
The core linking this text with the conclusion of this section is that qualification and exclusion are not the same assessment. A monetary payment title of execution and the commencement requirements are conditions that make the application possible, while the exclusion of a title bearing a declaration of provisional execution is a condition that prevents that title alone from clearing the threshold. If the stage of examining whether the former applies and the stage of examining whether the latter is engaged are mixed, the single fact that execution may be commenced is substituted for qualification for property disclosure. The author does not permit that substitution and confines the detailed distinctions within the stage to the cases that operate, the cases that are blocked, and the cases that are undetermined. That is, the distinctions are drawn only among the case where one holds a title and requirements permitting the application and specifies the grounds for inquiry and the target institutions; the case where one holds only an excluded title with provisional execution, or where no additional statutory ground exists so that the information procedure cannot be used; and the case where the scope of the replies and any omission of targets cannot be known. No new stage is added here, nor is any other qualification created.
The strongest counterargument targets the point that the protection of the debtor's information may aid the concealment of property and shift search costs to the creditor. If a creditor who does not know the property holds only a judgment with provisional execution and cannot use any information channel, the practical benefit leading to recovery is diminished despite holding a title. The loss and inconvenience identified by the counterargument are real, and there is no need to erase that portion. The moment the cost reduction demanded by the counterargument is accepted as a matter of the creditor's convenience, the distinction that the proviso to Article 61 draws according to the type of title collapses. The author's answer is to maintain that distinction, while declining to erect anew the deficiency of practical benefit urged by the counterargument as an element of assessment.
What can be confirmed in this scene is only the type of title and the absence of information, and the fact that the type of title of execution, the course of the property disclosure, the list of property, the grounds for inquiry, the target institutions, and the replies are the subjects to be recorded. No claim is made that these records were actually collected. This scene alone does not establish whether the title bears a declaration of provisional execution, whether it satisfies a monetary payment title and the commencement requirements, or whether the grounds for inquiry were specified. However, as a test that alters one condition of assessment, the note stating that "if, in a state where only provisional execution exists, it is changed to a confirmed title permitting disclosure, the threshold of the information procedure is reassessed" signifies only a shift in the condition, and is not a fact that the changed state has occurred.
The conclusion permitted by this section is that the detailed distinctions within the stage are confined to the conditions it has specified, and what is not permitted is the invention of a new stage outside those conditions. Whether one may apply by satisfying a monetary payment title of execution and the commencement requirements, whether one is excluded by holding a title bearing a declaration of provisional execution, and whether one remains undetermined because the scope of the replies cannot be known are recorded separately and distinctly, but no qualification or exception beyond those three is created at this point. The deficiency of practical benefit pointed out by the counterargument likewise cannot change this assessment unless it is newly erected as a condition.
1.11Synthesis of Effectiveness, Blockage, and Undetermination
In this scene, creditor A is placed in the position of having to find property that may become the object of compulsory execution. Upon that, what this stage asks is how to distinguish the operation, blockage, and undetermined status of the legal channel for accessing property information. Here, operation means the state in which the threshold of the information procedure is open, and blockage means the state in which that threshold is closed. Undetermined refers to the state in which judgment must be reserved because the scope of the replies and whether any inquiry targets were omitted cannot be known.
Property disclosure is the procedure requiring the debtor to reveal a list of property. Its application requirements are prescribed by Article 61 of the Civil Execution Act, and the provision stipulates that a creditor who may commence compulsory execution on the basis of a title of execution for the payment of money may apply. The same Article then excludes, provided that this shall not apply, a judgment bearing a declaration of provisional execution under Article 213 of the Civil Procedure Act, or a title of execution that has force of execution by virtue of such a declaration attached pursuant to the application mutatis mutandis (Civil Execution Act, Article 61). The actor indicated by that text is the creditor holding a monetary title, the act is the filing of an application demanding property disclosure, and the conditions, in the same terms, are confirmed to be the possibility of commencing compulsory execution and not being an excluded title.
Linking this text with the preceding distinction reveals the point at which the conditions that open and the conditions that block diverge. The case in which standing to apply is opened is the case where one holds a monetary title permitting an application for property disclosure and the commencement requirements, and specifies the grounds for inquiry and the target institutions. Conversely, the case in which it is blocked is set as the case where one holds only a title with provisional execution excluded from property disclosure, or where no additional statutory ground for inquiry exists so that the information procedure cannot be used. Why must the two stages be distinguished? Because the first stage, asking the type of title of execution, and the second stage, asking the grounds for inquiry and the target institutions, each examine a different threshold. If the first threshold is not cleared, one cannot proceed to the succeeding discussion of inquiry.
The strongest counterargument targets the point that where execution is permitted while the property is unknown, the practical benefit is slight. Creditor A holds a title but does not know what to execute; if A must accept only permission to execute while access to information is blocked, the criticism runs, the effective realization of the right is gravely impaired. That counterargument goes so far as the point that the protection of debtor B's information may aid the concealment of property and shift search costs to the creditor. Leaving intact the loss and inconvenience emphasized by the counterargument, since the restriction of qualification on grounds of exclusion stands as the preceding condition, it cannot be nullified.
In the synthetic scene, creditor A holds a title ordering the payment of money. Whether the title bears a declaration of provisional execution is not established in the scene, and therefore the application of the exclusion ground under Article 61 cannot be adjudged on this scene alone. Whether the grounds for inquiry and the target institutions were specified, and whether, in the replies received as inquiry results, there were omissions among the target institutions, likewise remain undetermined. Accordingly, what this scene presently establishes is only that, in assessing the legal channel for accessing property information, the type of title of execution, the course of the property disclosure, the list of property, the grounds for inquiry, the target institutions, and the replies must be taken as the records.
The conclusion permitted by this section is as narrow as follows. If one holds a monetary title and the commencement requirements permitting an application for property disclosure and specifies the grounds for inquiry and the target institutions, the threshold of that information procedure opens; if one holds only a title with provisional execution excluded from property disclosure, or no additional statutory ground for inquiry exists, the threshold is blocked. If the scope of the replies and whether any inquiry targets were omitted cannot be known, opening and blockage are not established and the matter is left undetermined. What this distinction does not permit is the conclusion that standing to apply is opened by a title with provisional execution alone, and the conclusion that undetermined items are treated automatically as blocked.
1.12Conclusion Carried Over to the Next Section
On the premise that the stay of proceedings and the revocation of enforcement dispositions already carried out must be recorded separately and that the actual scope of the decision must be followed, Creditor A holds an enforceable title ordering payment of money but does not know what executable property Debtor B possesses. A calls to mind the property disclosure procedure in order to fill this gap in information. This procedure is one that requires the debtor to reveal a list of property, and it corresponds to the first threshold of the lawful channel of access to information. Yet before standing at that threshold, the prior question is whether an application may be made on the strength of a provisional execution judgment alone.
The wording that answers this question is found in Article 61 of the Civil Execution Act. Paragraph (1) provides that 「A creditor who may commence compulsory execution on the basis of an enforceable title whose purpose is payment of money may file with the court of the place of the debtor's ordinary forum an application demanding the disclosure of the debtor's property」, and the proviso adds that 「provided, that this shall not apply in the case of a judgment to which a declaration of provisional execution under Article 213 of the Civil Procedure Act is attached, or an enforceable title having force of execution to which a declaration of provisional execution is attached under the application mutatis mutandis of the same Article」 (Article 61 of the Civil Execution Act). This wording fixes the creditor as the person entitled to apply, the act as the filing of an application demanding the disclosure of property, and the conditions as an enforceable title for payment of money and the possibility of commencing compulsory execution.
Through this wording, two stages of determination are revealed as different from each other. The first is the stage of asking whether compulsory execution may be commenced, that is, the question of executability; the second is the stage of asking whether the disclosure of property may be demanded on the strength of that title alone, that is, the question of eligibility for the information procedure. The proviso to Article 61(1) designates as subject to exclusion the case in which a title to which a declaration of provisional execution is attached possesses force of execution. From this follows the conclusion that the possibility of provisional execution cannot be automatically substituted for eligibility to apply for the disclosure of property. Put in other words, the very circumstance that B's property cannot be known is not itself a ground for going beyond the exclusion, and eligibility to apply is determined according to the type of the enforceable title and the commencement requirements.
Nevertheless, the loss suffered from the creditor's standpoint is considerable. This is why the criticism arises that B's protection of information assists the concealment of property and may shift search costs onto A. Such cost-shifting is the real inconvenience caused by this distinction, and it is not erased. Even so, however, the possibility of provisional execution cannot be automatically substituted for eligibility to apply for the disclosure of property. The need to lower the threshold of the information procedure is left as a matter of institutional improvement, and the scope of the exclusion fixed by the wording is preserved.
The discussion returns to the synthetic scene. A holds a title ordering payment of money, but the determination diverges according to whether that title bears a declaration of provisional execution or is a final and conclusive title. Because the type of the enforceable title has not been confirmed, the success or failure of the application for disclosure of property cannot be determined from this scene alone. The Records of the type of enforceable title, the course of the property disclosure, the list of property, the reason for the inquiry, the target institution, and the reply merely indicate the kinds of materials that would support this determination, and do not mean that actual records have been collected.
A provisional execution judgment alone does not permit an application for the disclosure of property; only by possessing an enforceable title for payment of money together with the commencement requirements, and by avoiding the exclusion directed at a declaration of provisional execution, may one enter the information procedure. The conclusion that is impermissible is the interpretation that the threshold of property disclosure has been crossed merely because the property cannot be known, or on the strength of a provisional execution title alone. Only after this distinction has been confirmed does one move on to the next question: does the failure to submit the list mean that no property exists?