Summary
The limits of inquiry as to the relevant institutions and point in time must be preserved so that an absence of information is not extended into permanent insolvency.
6.1The Standard by Which the Path Opens
An empty reply is not proof that the entire world of assets is empty. If there is no inquiry result, is that permanent impossibility of enforcement? The preceding section left only the point that the statutory grounds for entry in the register and the prima facie showing are a procedure that reveals whether performance has occurred and differ from the receipt of performance. Now the question is on what basis the entrance to the same documentary procedure is opened. Creditor A holds a title requiring the payment of money but does not know the executable assets of debtor B. In this scene, if the absence of information is not to become at once a determination of insolvency, it is necessary first to distinguish what the party entering the inquiry procedure must furnish and what it must specify.
Article 74 (2) of the Civil Execution Act provides: "The institution or organization to be inquired of shall be specified, and the expenses of the inquiry shall be paid in advance." (Civil Execution Act, Article 74) This text refers to the requirements applicable when the creditor makes the application under paragraph (1); the actor is the creditor making the application, and the act is the specification of the institution or organization to be inquired of and the advance payment of the inquiry expenses. Here the condition is that the specification and payment are in place at the time of application, and there is no need to draw in the issues under other paragraphs. What this paragraph provides is not a stratagem that leaves the scope of the inquiry open, but a demand that the creditor itself state which institution and which materials it is targeting.
Paragraph (3) of the same Article provides that, when the court conducts an inquiry, it "may require that the materials held by that institution or organization regarding the debtor's assets and credit be collected and submitted all at once." (Civil Execution Act, Article 74) From this text, what the court may require is the material held by the institution concerned; the party required to submit it is the head of that institution or organization; and the demand is made by a document stating the debtor's personal particulars. Only when the specification required by paragraph (2) is overlaid here does the inquiry operate within that institution's range of observation. The reason for separating the two stages is that the stage of judging whether the performance, parties, and conditions of the claim are specified in the prayer for relief and whether the right of the chosen action can be defended is a question distinct from the stage of specifying, within that frame, the materials of which institution are to be inquired of. The entrance to this remedy is opened only where the former is furnished and the ground for inquiry and the target institution are specified.
The uncertainty this standard leaves is not slight. If a specified institution fails to reply or its reply is meager, the creditor continues to bear search costs while waiting for that reply; the debtor's information is protected even as concealment may be made easier. The counterargument targets the point that leaving uncertainty here may lead to endless inquiries. Yet the non-reply of some institutions cannot be converted into the permanent non-existence of all assets. The statutory channel is not closed merely by the fact that there was no reply; only by preserving the limits of the inquiry as to the institution concerned and the point in time is the absence of information prevented from being enlarged into permanent insolvency. To reserve judgment within those limits is to keep the limits of the scope of inquiry, while the costs and inconvenience pointed out by the counterargument remain as they are.
The fact that can be confirmed in the synthetic scene is that creditor A holds a title seeking monetary performance but does not know the executable assets of debtor B. From this fact alone, the type of enforcement title, the course of the asset disclosure proceedings, the list of assets, the ground for inquiry, the target institution, and the content of the reply cannot be confirmed. The determination goes no further than comparing whether the demanded performance, parties, and conditions are specified in the prayer for relief and whether the right of the chosen action can be defended, and whether the ground for inquiry and the target institution are specified. If, rather than a state in which there is only a title subject to provisional execution, a final enforcement title capable of being disclosed is confirmed, the threshold of the information procedure must be judged anew. The scope of the reply and whether any target of inquiry was omitted cannot be known and thus remain undetermined.
The conclusion this section permits is limited. Where the ground for inquiry and the target institution are specified and a reply arrives, it must be regarded as an observation made only within the scope of the reply, and the non-existence of assets beyond that scope cannot be established. Even where there is no reply or the scope cannot be known, no declaration of permanent impossibility of enforcement follows; judgment is merely deferred for lack of material. Conversely, one cannot say that an inquiry is demanded without specification and payment of expenses, or that a door to the inquiry has been opened on the basis of a title subject to provisional execution alone. What must be preserved here is the limit of the scope of inquiry, and keeping that limit does not automatically open the conclusions of other procedures.
6.2The Conditions That Block Relief
It was confirmed above that the statutory grounds for entry in the register and the prima facie showing are a procedure that reveals whether performance has occurred and are distinct from the receipt of performance. Now what remains at issue is whether the absence of an inquiry result amounts to permanent impossibility of enforcement, and what the conditions are that block an inquiry. The absence of a reply and the non-existence of assets must be distinguished.
As to this question, the relevant text prescribes the method and scope of inquiry in procedural form. First, Article 74 of the Civil Execution Act provides that "(2) When the creditor makes the application under paragraph (1), the institution or organization to be inquired of shall be specified," thereby showing that the object of the inquiry is a limited scope opened through the creditor's act of specification. Paragraph (3) of the same Article provides that the court "may require the head of the institution or organization concerned to collect and submit all at once the materials held by that institution or organization regarding the debtor's assets and credit" (Civil Execution Act, Article 74). Here the actor is the head of the institution or organization concerned, the act is the submission of the materials held, and those materials are bound to the scope held by the institution.
These texts indicate that the result of an inquiry is a collection of observations by institution and by point in time, and that this is the nature of the statutory channel for access to asset information. This channel operates where the party has a monetary title permitting an application for asset disclosure and the commencement requirements, and specifies the ground for inquiry and the target institution. By contrast, where there is only a title subject to provisional execution, which is excluded from asset disclosure, or where no additional statutory ground for inquiry exists so that the relevant information procedure cannot be used, if any one of the statutory requirements is not met, the channel for inquiry is closed. This distinction divides the opening and closing of the channel; the result of an open channel does not mean that recovery has been accomplished.
Nevertheless, a counterargument arises to the effect that leaving uncertainty may lead to endless inquiries, that the creditor will continue to bear search costs, and that the protection of the debtor's information may end up assisting the concealment of assets. Such losses and inconvenience do not disappear. Even so, the non-reply of some institutions cannot be converted into the permanent non-existence of all assets. Because the limit of the scope of inquiry means the range of observation afforded by the materials held by the institution requested, a non-reply shows only an absence within that range.
Returning to the synthetic scene, A is placed in a state of holding a title but not knowing the executable assets of B, and a record remains from which the scope of the reply and whether any target of inquiry was omitted cannot be known. In this case the absence of information cannot be declared permanent insolvency and remains undetermined. By contrast, where the title subject to provisional execution stands as it is, or where no additional statutory ground for inquiry exists so that the institution or organization to be inquired of cannot be specified, the channel of this remedy is closed.
The conclusion permitted in this section goes no further than declining to convert the absence of a reply into an established fact outside the range of observation, and an interpretation that enlarges that absence into the permanent non-existence of assets is not permitted. This judgment specifies the conditions under which the channel for inquiry is closed, and does not include any judgment as to channels in other procedures or as to the ultimate result of enforcement.
6.3The Boundary That Remains When There Is No Data
In this scene, the information procedure means a state in which the statutory channel is open, and does not mean actual results of payment, delivery, or recovery.
The source text corresponding to this question is the provision prescribing the form of an application for inquiry. Article 74 (2) of the Civil Execution Act provides that "the institution or organization to be inquired of shall be specified, and the expenses of the inquiry shall be paid in advance," and paragraph (3) of the same Article provides that "it may require that the materials held by that institution or organization be collected and submitted all at once." Here the actors are the applying creditor and the court; the acts are the specification of the institution and the advance payment of expenses; and the object of the demand is the material held by that institution.
This text makes clear that the inquiry operates toward the material held by that institution. The limit of the scope of inquiry as defined by the author means the range of observation afforded by the materials held by the institution requested. The circumstance that no material emerged within that range of observation must be distinguished from the circumstance that assets outside the range of observation do not exist. The former is the absence of a reply at a particular point in time; the latter is a judgment of the permanent non-existence of assets. Where the scope of the reply and whether any target of inquiry was omitted cannot be known, matters on which the materials for judgment are not specified are distinguished from incapacity and remain undetermined.
The strongest counterargument is the concern that leaving uncertainty in this way may lead to endless inquiries. The counterargument points out that the protection of the debtor's information assists the concealment of assets and may shift search costs onto creditor A. The unfavorable part of this observation remains as it is. Inquiry requires the specification of an institution and advance payment of expenses, and repeated inquiries fall back upon creditor A as a burden. For the counterargument's concern about efficiency is a question of the number of inquiries, whereas the enlargement of the meaning of non-reply is a question of the grounds of judgment.
The only fact that can be confirmed in the synthetic scene is that creditor A holds a monetary title and does not know the executable assets of debtor B. The content of the actual record has not been established. Accordingly, the range within which any reply was made, and which institutions were omitted from the targets of inquiry, are unverified. Without filling these unverified matters with conjecture, on present conditions permanent impossibility of enforcement cannot be established.
The conclusion this section permits is narrow. The absence of material in which the scope of the reply and whether any target of inquiry was omitted are unspecified is undetermined and is not immediately an incapacity for relief. Beyond the boundary that cannot be established for want of material, however, this section does not permit the enlargement that converts the non-reply of some institutions into the permanent non-existence of all assets. Where a state of provisional execution alone changes into a final enforcement title capable of being disclosed, the threshold of the information procedure is judged anew.
6.4The Records Needed for Determination
To answer this question, one must first examine what must be recorded. Presupposing that the statutory grounds for entry in the register and the prima facie showing are a procedure revealing whether performance has occurred and are distinct from the receipt of performance, this stage considers how a case in which no material emerged is to be read.
Article 74 of the Civil Execution Act, concerning an application for inquiry, sets out the scope of the specification of the institution and the submission of materials. Article 74 (2) provides that "the institution or organization to be inquired of shall be specified, and the expenses of the inquiry shall be paid in advance," and paragraph (3) provides that "it may require that the materials held by that institution or organization be collected and submitted all at once." Here the actors are the creditor and the court; the acts are the specification of the institution and the demand for submission of materials; and the condition is limited to the materials held by the specified institution.
The requirement of specification of the institution and the scope of materials held, as prescribed by this text, become the standard for the stage determination. The author judges the stage solely on the basis of the type of enforcement title, the course of the asset disclosure proceedings, the list of assets, the ground for inquiry, the target institution, and the material recorded in the reply. Only within the range of observation afforded by the materials held by the institution requested—what is called the limit of the scope of inquiry—is what existed revealed. If facts outside the recorded material are filled in by conjecture, it becomes impossible to distinguish what that stage confirmed from what it failed to confirm.
The strongest counterargument targets the point that leaving uncertainty leads to endless inquiries. The loss that the protection of the debtor's information assists the concealment of assets and may shift search costs onto the creditor is real. Preserving the specified institution and the scope of the reply at that point in time is not delay, but a matter of placing the grounds of the determination precisely.
In the synthetic scene, creditor A holds a title requiring the payment of money and does not know the executable assets of debtor B. From this scene alone, which institutions were specified and which replies arrived are not settled. Accordingly, on the record at present, from which the scope of the reply and whether any target of inquiry was omitted cannot be known, the stage cannot be established. Where, however, there is a monetary title permitting an application for the information procedure and the commencement requirements, and the ground for inquiry and the target institution are specified, the statutory channel is open; and where a state of title subject to provisional execution alone changes into a final enforcement title capable of being disclosed, the threshold is judged anew.
The conclusion this section permits is the stage determination within the recorded scope; what it does not permit is the enlargement of non-reply into permanent impossibility of enforcement. Whom does the attachment of claims prohibit from doing what?
6.5Circumstances That Change the Decision
Creditor A holds a title requiring the payment of money but does not know the executable assets of debtor B; can it be said that, merely because the place to which the inquiry returned was empty, a permanent conclusion of impossibility of enforcement has been established? In the preceding section, this determination rests on the type of enforcement title, the course of the asset disclosure proceedings, the list of assets, the ground for inquiry, the target institution, and the reply. If that record is absent, the conclusion remains undetermined. What is asked now is: with what change of circumstances is that undetermined state to be judged again?
The text pointing to that circumstance is provided in the inquiry procedure. Article 74 (2) of the Civil Execution Act provides that "the institution or organization to be inquired of shall be specified, and the expenses of the inquiry shall be paid in advance." This provision indicates that, when the creditor applies, the creditor bears the responsibility of fixing in advance the object and cost of the inquiry, and makes clear that an inquiry is a request directed to a specified institution or organization. The result of the inquiry arrives only at the place designated as its object.
In the flow of the same provision, paragraph (3) states that, when the court conducts an inquiry, it may require "the head of the institution or organization concerned, by a document stating the debtor's personal particulars," to produce the materials held. Here the breadth of observation follows the materials possessed by the institution requested. The limit of the scope of inquiry means precisely the range of observation afforded by the materials held by the institution requested, and only within that limit does the presence or absence of a reply have meaning. An empty reply remains as the failure to find material within the limits of the inquiry as to that institution and that point in time.
If the facts are so, the counterargument that leaving uncertainty may lead to endless inquiries gains force. Each time, the creditor may designate a different institution and, paying the expenses, request an inquiry again, while the debtor may remain throughout without revealing the whereabouts of assets. That search costs are shifted onto the creditor and that the protection of information may be used for the concealment of assets is precisely the inconvenience this counterargument targets. What that non-reply recorded goes no further than the limits of the inquiry as to that institution and that point in time.
The point that affects the determination is the status of the title. A change in the type of enforcement title does not by itself fix the result, but reopens the judgment as to which information procedure may be reached. Where, however, the scope of the reply and whether any target of inquiry was omitted cannot be known, that part remains undetermined.
What this conclusion permits is to evaluate the absence of information as to that institution and that point in time while preserving the limit of the scope of inquiry. What it does not permit is to read the non-reply of some institutions as the permanent non-existence of all assets and to declare permanent impossibility of enforcement. An empty reply merely marks the boundary of observation; it does not prove in its stead whether assets exist.
6.6The Strongest Counterargument and the Answer
The mere circumstance in this scene that certain institutions did not send their materials does not lead to the conclusion that B has no property whatsoever. The question now is what answer is possible to the counterargument that leaving uncertainty in place may give rise to endless inquiries.
The text of the query procedure first draws the scope to which a request reaches. Article 74, paragraph (2) of the Civil Execution Act provides: "(2) Where a creditor makes an application under paragraph (1), the creditor shall specify the institutions or organizations to be queried and shall pay in advance the costs incurred in the query."(Civil Execution Act, Article 74) This text fixes the person entitled to make the application as the creditor, and the act as the specification of the institutions or organizations and the advance payment of the costs. In other words, when a creditor seeks a query, only the institutions or organizations that have been specified become the counterpart of the request, and a query whose costs have not been paid in advance does not satisfy the requirements of the application. Hence the materials that a query can observe begin within the scope of the institutions or organizations originally specified.
Article 74, paragraph (3) of the Civil Execution Act limits the scope of materials the court may require by the following text: "(3) Where the court conducts a query pursuant to paragraph (1), it may require the head of the relevant institution or organization to collect and submit at once, by means of a document stating the debtor's personal particulars, the materials held by that institution or organization concerning the debtor's property and credit."(Civil Execution Act, Article 74) The actor spoken of in this provision is the court, the counterpart is the head of the relevant institution or organization, and the subject of submission is the materials held by that institution or organization. Two stages overlap here. First, which institutions have been specified determines the scope of observation; next, what materials those institutions actually hold determines the content of the reply. The limit of the scope of a query means the scope of observation according to the materials held by the requested institution. Even if some institution does not reply, that silence means only that no material could be found within that institution's scope of holdings, and cannot serve as a ground for denying the existence of property held by other institutions that were not requested or not specified.
If this distinction is maintained, uncertainty remains, and that uncertainty imposes the search costs and delay on Creditor A exactly as they are. The counterargument aims precisely at that loss. It says that Debtor B's protection of information helps conceal property, and that Creditor A continues to bear the burden of paying the query costs in advance and specifying the institutions one by one. This observation is factual, and the more the non-replies are repeated, the greater Creditor A's suffering becomes. Even so, the non-replies of some institutions cannot be converted into the permanent non-existence of all property. If the meaning of a non-reply is limited to the absence of materials of a particular institution at a particular point in time, uncertainty remains, but in exchange the very fact that there is an unobserved scope is preserved. That preservation leaves room for later querying other institutions or other points in time.
The facts that can be confirmed in the synthetic scene are limited. Creditor A holds a title, does not know Debtor B's property available for enforcement, and it has not been specified which institution holds which materials. The kind of enforcement title, the course of the property disclosure procedure, the property inventory, the reason for the query, the target institutions, and the actual content of the replies are not fixed values. Therefore, from this scene alone one cannot know the scope of the replies or whether any query targets were omitted, and that state remains undetermined. The conditions that are confirmed, however, are clear: that a query targets the materials held by specified institutions or organizations, and that a non-reply is an observed result within that scope. Under these conditions, to enlarge a non-reply into the non-existence of all property would be to draw in facts that the scene does not contain.
The conclusion this section permits is narrow. The non-replies of some institutions amount to no more than an indication that no materials could be found within the limits of the query to that institution at that point in time, and do not by themselves mean that all of Debtor B's property is permanently absent. Distinct from this, the conclusion not permitted is the interpretation that reads the accumulation of non-replies as a definitive finding of permanent inability to enforce or of insolvency. A record that there are no materials and a determination that there is no property are different judgments, and to promote the former into the latter requires a ground that the text of this section does not provide. The uncertainty left earlier is to remain as it is, but binding the meaning of non-replies within the scope of observation is the boundary of this section.
6.7The Link to the Application and the Dispositive Part
Taking up the conclusion of the preceding section that the non-replies of some institutions cannot be converted into the permanent non-existence of all property, the analysis now asks what those empty replies leave behind. To answer this question, one must first distinguish the state in which there is no information from the state in which there is no property. This is because the judgment of inability to enforce differs according to whether the empty reply speaks of the former or the latter.
The text in question fixes the form of the query application. Article 74, paragraph (2) of the Civil Execution Act provides: "(2) Where a creditor makes an application under paragraph (1), the creditor shall specify the institutions or organizations to be queried and shall pay in advance the costs incurred in the query"(Civil Execution Act, Article 74). In this text the person conducting the query is the creditor, and the act is the specification of the institutions or organizations to be queried and the deposit of the costs. That is to say, a query is a procedure set in motion by the creditor, who fixes the scope of the request; it is not a procedure in which the court fixes the scope. Accordingly, even if a reply is empty, it is nothing more than a reply to a request sent to the designated institution.
Paragraph (3) of the same Article adds the scope of materials the court may require. Paragraph (3) provides: "Where the court conducts a query pursuant to paragraph (1), it may require the head of the relevant institution or organization to collect and submit at once, by means of a document stating the debtor's personal particulars, the materials held by that institution or organization concerning the debtor's property and credit"(Civil Execution Act, Article 74). In this text the counterpart of the requirement is the head of the relevant institution or organization, and the scope of the requirement is limited to the materials held by that institution or organization. Only if this limit is left in the record is the absence of information not enlarged into permanent insolvency. This is because the emptiness of the observed scope and the existence of an unobserved scope are different judgments.
The strongest counterargument aims at the loss that the uncertainty itself leaves behind. If uncertainty is left in place, endless inquiries may follow. The creditor has already deposited the costs and specified the institutions for the query, yet received only empty replies, and if that state is left in suspense, the search costs and delay of repeating the queries fall back on the creditor. Conversely, if the scope of queries is drawn narrowly on the strength of the debtor's protection of information, concealment of property may exploit that gap. The costs and inconvenience pointed out by the counterargument are to be left in place, but they cannot be resolved by broadening the meaning of empty replies.
The fact confirmed in the synthetic scene is that Creditor A holds a title to performance but does not know Debtor B's property available for enforcement. It is not settled that this scene contained a reason for a query, target institutions, or any reply. Therefore, under the assumption that the reply was empty, what can be judged is only the fact that the reply is empty within the scope of observation of the materials held by the specified institution. If the scope of the reply and whether any query targets were omitted cannot be known, that judgment itself remains undetermined. Where there is only a title carrying provisional execution and it is converted into a fixed title permitting disclosure, the threshold of the information procedure must be judged anew, and this is a test that changes the conditions, not a fact that has occurred.
The fact that a query returned an empty result has meaning only within the limits of the query to that institution at that point in time. It means neither that all of Debtor B's property is permanently absent, nor that Creditor A's right has fallen into permanent inability to enforce. That information is empty and that property does not exist must be distinguished, and the premise of the preceding section supports precisely this distinction.
6.8The Scope This Section Undertakes
If the premise is carried forward that the statutory grounds and substantiation for registration in the list are a procedure revealing whether performance has been made, and differ from the receipt of performance, then without re-deploying the argument of the preceding stage the following problem remains. In this situation, if there is no query result, does permanent inability to enforce follow?
The text of the query procedure fixes the horizon of observation in advance. Under Article 74 of the Civil Execution Act, where a creditor makes an application under paragraph (1), the creditor shall specify the institutions or organizations to be queried and shall pay in advance the costs incurred in the query. This text fixes the person who conducts the query as the creditor, the act as the specification of the institutions or organizations and the deposit of the costs, and the condition as the application under paragraph (1). Accordingly, the scope of the reply is determined first within the list of requested institutions.
The same provision creates a second limit on the scope of observation. It provides that where the court conducts a query pursuant to paragraph (1), it may require the head of the relevant institution or organization to collect and submit at once, by means of a document stating the debtor's personal particulars, the materials held by that institution or organization concerning the debtor's property and credit(Civil Execution Act, Article 74). Thus the limit of the scope of a query means the scope of observation according to the materials held by the requested institution. There is no device in either paragraph for pushing this scope of observation outward, and the resulting blank is an unobserved area, not a determination of non-existence.
The loss that arises if this distinction is discarded is concrete. The moment a non-reply is converted into the permanent non-existence of all property, the determined conclusion of Creditor A's permanent inability to enforce is established first, instead of Debtor B's protection of information, and the silence of institutions holding no materials circulates as proof of the absence of all property. Even so, the non-replies of some institutions cannot be converted into the permanent non-existence of all property. What must be left in the record is the kind of enforcement title, the course of the property disclosure procedure, the property inventory, the reason for the query, the target institutions, and the replies, and this list is not a determined judgment but serves to retrace the scope of observation.
Returning to the synthetic scene, the only fact confirmed is that A holds a monetary title and does not know B's property available for enforcement. Since the reason for a query, the specified institutions or organizations, and whether there were replies are not fixed in this scene, where the scope of the replies and whether any query targets were omitted cannot be known, the matter remains undetermined.
The conclusion this section permits is narrow. The fact that there is no query result has meaning only within the limits of the query to that institution at that point in time, cannot enlarge the absence of information into permanent insolvency, and whether property exists outside the scope of observation cannot be adjudged in this section. What this section does not permit is the equation of non-reply with permanent inability to enforce, nor any determination of success or failure of recovery.
6.9Application of the Text of the Provisions and the Holdings of Precedents
Before the question whether the absence of a query result means permanent inability to enforce, Creditor A holds a title requiring the payment of money but does not know Debtor B's property available for enforcement. From the preceding analysis, only the procedural distinction is carried over, namely that the statutory grounds and substantiation for registration in the list are a procedure revealing whether performance has been made, and differ from the receipt of performance. On the premise of this distinction, today's question lies in whether the state of empty information can be converted into the permanent non-existence of property.
Among the texts in question, Article 74 of the Civil Execution Act fixes the manner of a query application along two branches. First, paragraph (2) provides: "(2) Where a creditor makes an application under paragraph (1), the creditor shall specify the institutions or organizations to be queried and shall pay in advance the costs incurred in the query," thereby fixing the target of the query and the costs at the application stage. The actor this text points to is the creditor, the act is the specification of the institutions or organizations and the deposit of the costs at the time of application, and the condition is the use of the limited procedure of an application under paragraph (1).
Paragraph (3) provides: "(3) Where the court conducts a query pursuant to paragraph (1), it may require the head of the relevant institution or organization to collect and submit at once, by means of a document stating the debtor's personal particulars, the materials held by that institution or organization concerning the debtor's property and credit."(Civil Execution Act, Article 74) In this text the actor making the requirement is the court, the target is the head of the relevant institution or organization, and the scope is bound to the materials on property and credit held by that institution or organization. This binding is the limit of the scope of a query, meaning the scope of observation according to the materials held by the requested institution.
When these texts are taken as the basis for adjudging the statutory channel of access to property information, the two scopes of the specified institutions or organizations and their held materials cannot be separated. Since the earlier text requires designation at the application stage and the later text confines the demand for submission within those designated institutions, the uncertainty left by non-replies remains as a limit of observation of particular institutions and points in time. The author takes the view that, beyond this scope, the non-replies of some institutions cannot be converted into the permanent non-existence of all property.
The loss left by this distinction is great. The more often Creditor A repeats queries, the more costs must be paid in advance, and if there are no replies, what remains unobserved cannot be known either, so the search costs and delay continue to grow. The criticism that Debtor B's protection of information helps conceal property and shifts that cost onto the creditor arises from the same place. Even so, if the blank in the replies is enlarged into the loss of effectiveness of the title, the result is to erase the text that the court's demand for submission is limited to the materials held by specified institutions. The uncertainty that remains is undetermined, and is not a determination of insolvency.
The facts that can be confirmed in this scene are only A's monetary title and the ignorance of B's property, while the reason for the query, the target institutions, and whether there were replies are not fixed. Therefore, the present state, in which the scope of the replies and whether any query targets were omitted cannot be known, remains undetermined. This applies only when the condition at the property disclosure stage that registration in the list is excluded where there is only a title carrying provisional execution is confirmed within this question; matters the scene has not adjudged are left as they are.
The conclusion this section permits goes no further than that the texts of Article 74, paragraphs (2) and (3) open the channel of query on the premise that the scope of observation is the materials held by specified institutions and organizations. The conclusion it does not permit is the one that reads the non-replies of some institutions as the permanent non-existence of all property and fixes inability to enforce. The remaining uncertainty is recorded only as the limit of the scope of a query, and does not alter the kind of title or the requirements of the information procedure.
6.10Fine Distinctions Within the Stage
이 장면에서 정보 부재가 무엇을 가리키는지 정확히 보려면, 통로 안의 어떤 부분을 따로 판정할지부터 가려야 한다.
「민사집행법 제74조」 제2항은 “②채권자가 제1항의 신청을 할 경우에는 조회할 기관·단체를 특정하여야 하며” 조회에 드는 비용을 미리 내야 한다고 요구한다. 제3항은 “③법원이 제1항의 규정에 따라 조회할 경우에는 채무자의 인적 사항을 적은 문서에 의하여 해당 기관·단체의 장에게 채무자의 재산 및 신용에 관하여” 그 기관이 보유한 자료를 한꺼번에 모아 제출하도록 요구할 수 있다고 정한다. 여기서 주체는 채권자와 법원이며, 대상은 특정된 기관이 보유한 자료다.
이 문언은 조회가 한정된 기관과 한정된 보유 자료를 겨냥함을 보여준다. 그렇기에 해당 기관과 시점의 조회 한계를 남겨야 정보 부재를 영구적 무자력으로 확대하지 않는다. 단계 안의 세부 구분은 작동하는 경우·막히는 경우·미확정인 경우에 명시된 조건에 한정된다.
그렇다고 불확실성이 남는 상태를 가볍게 여길 수는 없다. 불확실성을 남기면 끝없는 조회가 이어질 수 있고, 채권자는 그 탐색 비용을 고스란히 떠안는다. 채무자의 정보 보호가 재산 은닉을 돕는 통로가 될 수 있다는 점도 부정할 수 없다. 회신이 없다는 기록은 그 조회 범위 안에서 관찰되지 않았다는 사실을 가리킬 뿐이다.
합성 장면에서 채권자 A는 금전 권원을 갖고 조회 사유와 대상 기관을 특정했다면, 정보 절차의 문턱은 열린다. 다만 회신 범위와 조회 대상 누락 여부를 알 수 없는 경우까지 확정하지 않았으므로, 그 기록의 한계는 미확정으로 남는다. 가집행 권원만 있는 상태에서 명시 가능한 확정 권원으로 바뀌면 정보 절차의 문턱을 다시 판단하되, 이는 판정 조건의 변화일 뿐 사건의 추가 사실이 아니다.
따라서 확인할 수 있는 것은 일부 기관의 무회신이 영구적 집행불능의 증명이 되지 못한다는 점이다. 회신의 유무만으로 채무자의 재산 상태를 확정하거나 회수 성과를 예단할 수 없고, 판정은 기록에 남은 범위에 머무른다.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
이 장면에서 A가 마주치는 것은 채무자의 재산이 존재하느냐가 아니라, 법이 열어 둔 정보 절차에 무엇이 담기느냐이다. 이 물음에 답하려면 정보가 비어 있는 상태 하나를 그대로 무자력의 판정으로 옮길 수 없는지를 따져야 한다.
법령 문언은 조회 신청의 요건과 대상을 함께 정한다. 민사집행법 제74조 제2항은 “②채권자가 제1항의 신청을 할 경우에는 조회할 기관·단체를 특정하여야 하며 조회에 드는 비용을 미리 내야 한다.”라고 정하고, 같은 조 제3항은 “③법원이 제1항의 규정에 따라 조회할 경우에는 채무자의 인적 사항을 적은 문서에 의하여 해당 기관·단체의 장에게 채무자의 재산 및 신용에 관하여 그 기관·단체가 보유하고 있는 자료를 한꺼번에 모아 제출하도록 요구할 수 있다.”라고 정한다(민사집행법 제74조). 이 문언에서 조회의 주체는 신청할 채권자이고, 그가 특정하는 것은 기관·단체이며, 제출 대상은 그 기관이 보유한 자료로 한정된다.
이 두 문언은 조회 절차의 문턱과 관찰 범위를 나누어 보게 한다. 문턱은 재산명시를 신청할 수 있는 금전 권원과 개시 요건을 갖추고 조회 사유·대상 기관을 특정한 경우 열린다. 대조적으로 재산명시에서 제외되는 가집행 권원만 있거나 조회의 추가 법정 사유가 없어 해당 정보 절차를 사용할 수 없는 경우는 막힌다. 관찰 범위는 달라서, 조회 범위의 한계란 요청 기관이 보유한 자료에 따른 관찰 범위를 뜻한다. 정해진 결론은 이 둘을 함께 본다. 통로가 열린 뒤에도 회신 범위와 조회 대상 누락 여부를 알 수 없는 경우는 미확정으로 남는다.
가장 강한 반론은 비용과 지연의 부담을 겨냥한다. 채권자는 기관을 특정하고 비용을 미리 내야 하므로, 무회신이 남을 때마다 다른 기관을 다시 찾는 탐색 비용과 시간이 채권자에게 돌아간다. 이 불이익을 지우지 않으면서도, 저자의 답은 일부 기관의 무회신을 모든 재산의 영구 부존재로 바꿀 수는 없다는 데서 멈춘다. 무회신은 해당 기관이 가진 자료의 범위에서 나온 결과일 뿐, 그 밖의 재산에 대해서는 말하지 않기 때문이다.
합성 장면으로 돌아가면, A가 신청할 수 있는 권원의 종류와 조회 사유가 특정되어 있는지부터 확인된다. 집행권원 종류·재산명시 경과·재산목록·조회 사유·대상 기관과 회신이 판단의 기록이다. 권원과 개시 요건, 사유와 기관 특정이 갖추어졌다면 그 범위 안에서 통로는 열리는 쪽에 놓인다. 회신이 비어 있거나 범위가 드러나지 않은 부분은 미확정으로 남는다.
이 절이 허용하는 결론은 조건부 구별에 있다. 열리는 조건과 막히는 조건, 미확정의 조건을 나누어 보는 한, 빈 회신을 영구적 집행불능으로 확정할 수 없다. 열리지 않은 통로를 통과한 것으로 쓰는 것도, 미확인 회신을 재산 부존재의 확정으로 쓰는 것도 허용되지 않는다. 다만 이 구별이 실제 회수의 성과를 보증하지는 않으며, 기록에 없는 사실은 미확인으로 남는다.
6.12이 권의 결론과 남는 물음
앞 절에서는 재산명시를 신청할 수 있는 금전 권원과 개시 요건을 갖추고 조회 사유·대상 기관을 특정한 경우에는 작동하고, 재산명시에서 제외되는 가집행 권원만 있거나 조회의 추가 법정 사유가 없어 해당 정보 절차를 사용할 수 없는 경우에는 막히며, 회신 범위와 조회 대상 누락 여부를 알 수 없는 경우에는 미확정으로 남는다고 보았다. 같은 문맥에서 조회 결과가 없으면 영구적 집행불능인가라는 물음이 남는다. 이 장면에서 무회신이 무엇을 가리키는지 분명히 해야 한다.
조회 절차의 문언은 요청의 범위를 정하는 주체와 행위를 미리 제한한다. 민사집행법 제74조 제2항은 “②채권자가 제1항의 신청을 할 경우에는 조회할 기관·단체를 특정하여야 하며 조회에 드는 비용을 미리 내야 한다”라고 정한다(민사집행법 제74조). 이 규정은 채권자가 신청 시 조회할 기관·단체를 특정할 책임이 있음을 뜻한다. 같은 조 제3항은 “법원이 제1항의 규정에 따라 조회할 경우에는 채무자의 인적 사항을 적은 문서에 의하여 해당 기관·단체의 장에게 채무자의 재산 및 신용에 관하여 그 기관·단체가 보유하고 있는 자료를 한꺼번에 모아 제출하도록 요구할 수 있다”라고 정한다(민사집행법 제74조). 요구를 받는 자료가 “그 기관·단체가 보유하고 있는” 범위에 묶여 있다.
위 두 문언은 조회의 시작점과 도달점을 함께 보여준다. 신청 단계에서 기관·단체가 특정되면, 법원의 요구는 그 기관·단체가 가진 자료로 한정되고, 요구를 받은 자료는 한꺼번에 모아 제출되는 형태로 돌아온다. 그 결과로 받은 자료에 재산 흔적이 없으면, 확인된 것은 요청한 범위 안에서 그 기관이 보유한 자료에 나타나지 않았다는 사실이다. 이 절의 결론은 그 기록이 담아야 할 최소한의 내용과, 그 기록이 바꿀 수 없는 상태를 서로 구별한다.
그렇다고 모든 것이 미확정인 것은 아니다. 채권자에게 조회 비용의 선지급이 요구되므로 무제한 조회가 공짜로 가능하지는 않고, 신청 시 기관을 특정해야 하므로 무제한의 탐색이 절차 전면에서 허용되는 것도 아니다. 채무자의 정보 보호가 재산 은닉을 돕고 채권자에게 탐색 비용을 전가할 수 있다는 우려도 무게가 있다. 무회신으로 확정되는 것은 해당 시점의 해당 기관 보유 자료에 관한 관찰이고, 그 관찰을 넘어 다른 기관의 자료나 나중 시점의 재산 상태까지 부정하는 것은 이 문언이 주지 않는 확장이다.
이 판정이 실제 기록에서 무엇을 요구하는지도 분명히 정해져 있다. 남겨야 할 것은 집행권원 종류·재산명시 경과·재산목록·조회 사유·대상 기관과 회신이다. 조회 사유가 특정되지 않았거나 대상 기관이 빠져 있을 수 있는 경우에는 회신 범위와 조회 대상 누락 여부를 알 수 없으므로 미확정으로 남는다. 이 조건의 변화는 실제 일어난 사건이 아니라 판단을 다시 열 조건의 하나다. 앞의 관찰 한계를 기록에 남기는 범위는 바로 이 경계선까지이고, 어떤 무회신도 스스로 그 선을 넘지 않는다.
따라서 이 절이 허용하는 결론은 정해져 있다. 조회가 어떤 범위에서 비어 있는지를 그 범위의 이름과 함께 기록에 남기고, 그 빈자리가 뜻하는 것은 요청 기관의 보유 자료 안에서의 부재라는 한정된 사실이다. 이 판단은 무회신을 집행불능의 확정으로 읽는 것과 구별되며, 반대로 무회신이 아무것도 말하지 않는다는 뜻으로 되돌아가지도 않는다.
Statutes referred to
Questions left open
- 재산조회가 닿지 않는 권리의 공백은 무엇인가?
- 거짓 목록의 제재가 실제 회수로 이어지는지 어떻게 연구할 것인가?
- 과도한 탐색 비용과 사생활 보호는 어떻게 조정할 것인가?