Summary
In statutory cases such as substitutable acts, a decision for substitute performance is sought upon the creditor's application.
3.1The Standard by Which the Path Opens
There is no need to gather everything that can be done without the obligor's cooperation under the heading of matters of the will. Can someone other than the obligor do what the obligor fails to do? It was confirmed earlier that statutory enforcement of delivery of movables proceeds by the enforcement officer's taking the article from the obligor and delivering it to the obligee. Yet Creditor A, having obtained a judgment requiring the delivery of a specific article and a manifestation of intention by Defendant B, asks whether it can be enforced in the same manner. This question is not directed at confirming the manner of delivery again; it examines by what standard the channel through which performance can be compelled without the obligor's cooperation is opened. The question must be opened on the premise that the gateway to enforcement differs according to what performance is demanded.
Article 389(2) of the Civil Act sets out two cases side by side. Under the text, it provides that “(2) Where the obligation in the preceding paragraph has as its object a juristic act, the obligee may claim a judgment taking the place of the obligor's manifestation of intention,” and that where the object is an act not exclusively pertaining to the obligor's person, the obligee may request the court to have a third person perform it at the obligor's expense (Civil Act Article 389). The subject indicated by this text is the obligee, the act is the act the obligor undertook to perform, and the condition is that the act does not exclusively pertain to the obligor's person. Here, an act exclusively pertaining to the person means an act that by its nature only the obligor himself or herself can perform.
The provision that transfers the basis of this text to the enforcement stage is Article 260(1) of the Civil Execution Act. Its text provides that “(1) In the cases of the latter part of Article 389(2) and Article 389(3) of the Civil Act, the court of first instance shall, upon application by the obligee, render a DECISION in accordance with the provisions of the Civil Act” (Civil Execution Act Article 260). When the obligee applies, the court of first instance renders a DECISION in accordance with the provisions of the Civil Act. Thus, execution by substitution means enforcement whereby another person performs at the obligor's expense, and once the requirements are met, a DECISION of the court must follow. The gateway to this remedy opens where the requirements and DECISION for delivery, execution by substitution, indirect compulsion, or enforcement of a manifestation of intention, suited to the nature of the performance, are in place. This is why the task of first discerning the nature of the performance and the task of choosing the enforcement method suited to it must be judged separately.
The strongest counterargument is directed at the point that the quality of substitute performance may differ from the original promise. The result of the obligor's performing in the promised manner cannot be said to be the same as the result of another person's acting in the obligor's place, and the content of the performance may not be fully preserved. This disadvantage is not erased; it is left in place. Yet that disadvantage cannot convert an act exclusively pertaining to the person into an act that is of course substitutable. An act exclusively pertaining to the person is by its nature an act only the obligor can perform, and is therefore distinguished from an act that another person can perform in the obligor's place. The question of the quality of substitute performance can be debated only after substitutability has been confirmed, and an act as to which no such confirmation exists cannot be taken as the object first.
In the synthetic scene, the two performances demanded by Creditor A, namely the delivery of a specific article and the manifestation of intention by Defendant B, are placed together in a situation requiring distinction. The performance of delivery may fall under an act capable of substitution if the article exists and is of a nature that another person can take and hand over. By contrast, B's manifestation of intention is aimed at an effect that alters a legal relationship, and so is closer to the side that raises the separate channel provided by Article 389(2) of the Civil Act, namely a judgment taking the place of the obligor's manifestation of intention. However, since this scene fixes no values such as year, amount, or period, it cannot be determined from this scene alone which performance is in fact of a nature capable of enforcement, or whether the object still exists. If an act that was treated as substitutable is confirmed to be an act exclusively pertaining to the person, the conclusion is that execution by substitution cannot be chosen.
The conclusion permitted by this section goes no further than this: the channel of this remedy is opened only where the enforcement method and requirements and DECISION suited to the nature of the performance are in place and the scope of the claim and the defenses have been settled. It does not mean that substitute performance guarantees the same result as the original promise, still less that an act exclusively pertaining to the person can as such be handed over to another person. The determination of who first provides the costs of execution by substitution is not addressed in this section.
3.2The Conditions That Block Relief
At that stage it was confirmed that statutory enforcement of delivery of movables is the method by which the enforcement officer takes the article from the obligor and delivers it to the obligee, and the present inquiry concerns the condition attached to the question whether someone other than the obligor can do what the obligor fails to do. If the preceding stage dealt with the manner of delivery itself, this stage undertakes to discern the point at which that method closes. The Case placed before this question is a synthetic scene, and the enforceability of the judgment is determined separately for each method.
The statutory text distinguishes two branches of claim. Article 389(2) of the Civil Act provides: “Where the obligation in the preceding paragraph has as its object a juristic act, the obligee may claim a judgment taking the place of the obligor's manifestation of intention; and where its object is an act not exclusively pertaining to the obligor's person, the obligee may request the court to have a third person perform it at the obligor's expense.” This text divides the object of the application according to the nature of the obligation. One side is a judgment taking the place of the obligor's manifestation of intention; the other is a request to the court to have a third person perform the act at the obligor's expense. Which application is appropriate is determined by what the act in question is.
The provision linking that distinction is Article 260(1) of the Civil Execution Act. This Article provides: “In the cases of the latter part of Article 389(2) and Article 389(3) of the Civil Act, the court of first instance shall, upon application by the obligee, render a DECISION in accordance with the provisions of the Civil Act.” That is, where the claim under the Civil Act meets the requirements, the procedure follows in which the court of first instance renders a DECISION upon application. Under this standard, in the statutory cases of acts capable of substitution and the like, the obligee seeks a DECISION of execution by substitution upon application. Execution by substitution means enforcement whereby another person performs at the obligor's expense. However, a threshold remains in this determination. Where the obligation is of a nature that cannot be performed by the compulsory method chosen, or where requirements remain outstanding, such as the counter-obligation to a conditional manifestation of intention, the claim for compulsory performance cannot be accepted if any one of the statutory requirements is unmet. The characterization of the nature of the obligation and the satisfaction of the requirements are different determinations and must not be conflated.
If another person performs the act the obligor undertook to perform, the form or timing of the result may diverge from the promise, and that divergence becomes a loss to the obligee. Added to this is the concern that a method of compelling an act only the obligor can perform may infringe personality and liberty. The answer given earlier, however, is this: an act exclusively pertaining to the person cannot as a matter of course be converted into an act capable of substitution. The differences in quality or the infringements of liberty pointed out by the counterargument do not disappear, but on that account the nature of the obligation cannot be altered so as to make it an object of execution by substitution. The adverse aspects of the counterargument are left in place as they are, and only the expediency of altering the nature of the obligation is prevented.
The facts confirmed in the synthetic scene are that two demands are placed together in one judgment. Creditor A demands the delivery of a specific article, and Defendant B's manifestation of intention is demanded. Of these, the delivery of the article is the subject on which the current state of the object and its substitutability are to be recorded, while the manifestation of intention diverges in path according to what its nature turns out to be. The content of the performance, the current state of the object, substitutability, the enforcement DECISION, performance of the counter-obligation, and the records of receipt become materials for the determination. However, this scene has not confirmed whose act it is, that is, whether it is an act capable of substitution or an act exclusively pertaining to the person, nor whether the specific article still exists; nor has it been settled whether the counter-obligation has been performed. If an act that was treated as substitutable is confirmed to be an act exclusively pertaining to the person, the conclusion is that execution by substitution cannot be chosen, but all other matters remain undetermined.
The conclusion permitted by this section is narrow. In the statutory cases of acts capable of substitution and the like, a DECISION of execution by substitution can be sought upon the obligee's application, and once that DECISION is in place, the channel for having another person perform at the obligor's expense opens. Yet the fact that the door has opened is different from payment, delivery, or recovery actually having taken place. This section judges only the availability of choice among compulsory methods in the actual execution of non-monetary performance. This section does not permit the conclusion of converting an act exclusively pertaining to the person into an act capable of substitution, nor does it permit declaring the channel open while requirements remain outstanding.
3.3The Boundary That Remains When There Is No Data
The question whether someone other than the obligor can do what the obligor fails to do inherits in a single sentence the difference in method addressed in the preceding stage of this section, and takes as its premise that statutory enforcement of delivery of movables is the method by which the enforcement officer takes the article from the obligor and delivers it to the obligee. What remains is the question: where, then, lies the boundary that cannot be fixed for want of materials? This question amounts to the work of first discerning what the materials for determination are, before the choice of method of execution.
Article 389 of the Civil Act provides in paragraph (2) as follows: “(2) Where the obligation in the preceding paragraph has as its object a juristic act, the obligee may claim a judgment taking the place of the obligor's manifestation of intention; and where its object is an act not exclusively pertaining to the obligor's person, the obligee may request the court to have a third person perform it at the obligor's expense. <Amended on December 30, 2014.>” This text divides the preceding and following cases into separate claims. Where the obligation has as its object a juristic act, the channel is opened to claim a judgment taking the place of the obligor's manifestation of intention; where the obligation has as its object an act not exclusively pertaining to the person, the channel is opened to request the court to have a third person perform that act at the obligor's expense.
Article 260 of the Civil Execution Act governs the procedure for the latter channel. “(1) In the cases of the latter part of Article 389(2) and Article 389(3) of the Civil Act, the court of first instance shall, upon application by the obligee, render a DECISION in accordance with the provisions of the Civil Act.” Here, the stage is fixed up to the point where there is an application by the obligee and the court of first instance renders a DECISION in accordance with the provisions of the Civil Act. Execution by substitution means enforcement whereby another person performs at the obligor's expense. The determination is divided into two stages. First, it must be discerned whether the act is of a nature only the obligor can perform, that is, whether it exclusively pertains to the person; and only if it does not does the path of the use of a third person open. If this distinction is skipped, the result is to convert even acts exclusively pertaining to the person into acts capable of substitution.
The counterargument that the quality of substitute performance may differ from the original promise is aimed at substantive loss. The delicacy, order, or weight of the result that could have been entrusted to the obligor's own direct performance may differ when a third person performs it, and the obligee ends up receiving a form of performance other than the promised form. The concern that a method of compelling the obligor with respect to an act exclusively pertaining to the person may infringe personality and liberty arises from the same place. This answer prevents the choice of drawing into the use of a third person an act that by its nature no other person can perform, while at the same time not erasing the gap in quality identified by the counterargument.
The facts confirmed in the synthetic scene are that the demands of the judgment are divided into the delivery of a specific article and Defendant B's manifestation of intention, and that Creditor A asks whether it can be enforced in the same manner. Among these there are matters for which the materials for determination are not fixed. It has not been confirmed who can perform the act, that is, whether it is an act capable of substitution or an act exclusively pertaining to the person, and there is no record as to whether the specific article still exists today. Of the content of the performance, the current state of the object, substitutability, the enforcement DECISION, performance of the counter-obligation, and the records of receipt, not one is filled in in this scene. If an act treated as capable of substitution is confirmed to be an act exclusively pertaining to the person, the choice of execution by substitution stops. Items for which no materials remain must be left undetermined as they are.
The conclusion permitted by this section is narrow. Matters for which the materials for determination are not fixed are left undetermined, distinguished from impossibility. That is, the fact that there are no materials is not immediately converted into a remedy being unavailable, and the range that cannot be fixed is left in place without being fixed. What remains is the condition that one can proceed to the stage of actual execution only where the requirements and DECISION for delivery, execution by substitution, indirect compulsion, or enforcement of a manifestation of intention, suited to the nature of the performance, are in place; and where the obligation is of a nature that cannot be performed by the compulsory method chosen, or where requirements remain outstanding, that choice stops.
3.4The Records Needed for Determination
Statutory execution for the delivery of movables is a method by which the court execution officer takes the object from the debtor and delivers it to the creditor. This question, then, asks whether someone else can do what the debtor does not do. And when that determination is made, one must also settle which record is to be opened first. It must first be made clear whether the act of handing over an object and the act of manifesting a declaration of intention are acts of the same nature.
Article 389 (2) of the Civil Act sets out two cases side by side. Its text provides: "Where the object of the obligation is an act not exclusively personal to the debtor, the creditor may apply to the court to have a third party perform it at the debtor's expense" (Article 389 of the Civil Act). Here, a substitutable act means an act that not only the debtor but also another person may perform in the debtor's place. The earlier part of the same Article deals with obligations whose object is a juristic act, but the present question remains confined to the determination concerning the act in the latter part. Article 260 (1) of the Civil Execution Act provides: "In the cases of the latter part of Article 389 (2) and paragraph (3) of the Civil Act, the court of first instance shall, upon application of the creditor, render a decision under the provisions of the Civil Act" (Article 260 of the Civil Execution Act), thereby making clear through which application and by which court's decision that determination is made.
Placing these texts together reveals the reason why the determination must be divided into stages. The earlier issue is a matter of distinguishing whether the act is one that another person may perform, that is, its substitutability. The later issue is a matter of examining whether the requirements and procedure for seeking a substitution execution decision, which orders that act to be entrusted to a third party at the debtor's expense, are in place. The stage is determined solely on the data recorded in the content of the performance, the status of the object, substitutability, the execution decision, performance of the counter-obligation, and the receipt record. Stage determinations are made solely on the fixed records. Missing records are not filled in by conjecture.
The fact that the quality of substituted performance may differ from what was originally promised remains a loss that is difficult for the creditor to accept. It is difficult to assume that performance by the debtor in person and performance by another person are the same. Even so, an act exclusively personal to the debtor cannot simply be converted into a substitutable act. There is no need to abandon the concern that compelling an act only the debtor can perform may infringe personality and freedom. The author leaves that disadvantage in place, opening the way for third-party performance only within the scope where substitutability is confirmed. He does not fix the conclusion at either extreme—excluding substituted performance wholesale because the quality differs, or conversely pressing ahead by ignoring the nature of the act.
In this scene, Creditor A seeks delivery of a specific object, and has obtained a judgment requiring also Defendant B's declaration of intention. This fact alone does not settle whether both performances can be executed in the same manner. As to delivery of the specific object, it must be confirmed from the records whether the object presently exists and is of a nature that the execution officer can take and move; as to B's declaration of intention, whether it is an act exclusively personal to the debtor that no other person can perform in his place. Whether the matter remains unresolved depends on which item among the content of the performance, the status of the object, substitutability, the execution decision, performance of the counter-obligation, and the receipt record is lacking. Insufficient data means merely that the matter is unresolved; it does not mean that relief is immediately unavailable.
The conclusion permitted by this section remains within the narrow scope that, in the statutory cases such as that of a substitutable act, a substitution execution decision may be sought upon the creditor's application. What is confirmed here is the standard that stage determinations must be made solely on the fixed records; where the records are wanting, judgment must be reserved, which is not a declaration that substitution execution is impossible. Conversely, treating an act exclusively personal to the debtor as a substitutable act and pressing ahead, or determining from this document alone whether any performance has been completed, are conclusions this section does not permit.
3.5Circumstances That Change the Decision
Following the question whether someone else can do what the debtor does not do, the analysis now examines what change reverses a stage determination already made. The preceding section took as its premise that statutory execution for the delivery of movables is a method by which the court execution officer takes the object from the debtor and delivers it to the creditor.
The text that answers this question is set out in two branches in Article 389 of the Civil Act. Paragraph (2) of that Article provides: "Where the obligation in the preceding paragraph has for its object a juristic act, the creditor may claim a judgment in lieu of the debtor's declaration of intention; where it has for its object an act not exclusively personal to the debtor, the creditor may apply to the court to have a third party perform it at the debtor's expense." This text divides the kind of judgment that may be claimed according to what the object of the obligation is. The former is a judgment in lieu of the debtor's declaration of intention; the latter is a decision ordering a person other than the debtor to perform the act at the debtor's expense. The subject named by the text is the creditor, the act is an act the debtor has not performed, and the condition is that the act is not exclusively personal to the debtor. Article 260 (1) of the Civil Execution Act provides: "In the cases of the latter part of Article 389 (2) and paragraph (3) of the Civil Act, the court of first instance shall, upon application of the creditor, render a decision under the provisions of the Civil Act." Here the body that renders the decision is the court of first instance, and the starting point is the creditor's application.
The standard formed by these two texts distinguishes the conditions for the constitution of substitution execution as defined above—that is, execution having another person perform at the debtor's expense—and the conditions under which it is barred. The former is the case where the object is an act not exclusively personal to the debtor; the latter is the case of an act of a nature, like an act exclusively personal to the debtor, that no other person can perform in the debtor's place. If this distinction is not maintained and the two cases are bundled into one, the result is to apply the decision for the former case directly to the latter. Then a determination that another person can perform in place of an act that in reality only the debtor can perform would have to come first, yet that antecedent determination is nowhere in the text. Accordingly, it must first be settled which side the object of the obligation falls under, and the method of execution that may be claimed branches according to that confirmation.
Unlike when the debtor performs in person, if another performs in the debtor's place the state of the resulting product may differ, leaving room for the creditor to receive something other than what was promised. That disadvantage cannot be ignored. From another angle, there is placed alongside it the concern that compelling an act only the debtor may perform may press unequally upon personality and freedom. This answer does not erase the loss pointed out by the counterargument. It only clarifies the boundary that the path for addressing that loss lies not in substitution execution but in some other manner. The point that the quality differs is a matter for after substitutability has been confirmed, and does not alter the confirmation itself.
The facts confirmed within the synthetic scene are limited. Creditor A has obtained a judgment requiring delivery of a specific object and Defendant B's declaration of intention, and what is now asked is whether it can be executed in the same manner. In this scene, the content of the performance and the status of the object, and with whom the act the debtor did not perform is substitutable, are not fixed. Which of the two branches divided by the text applies varies according to what nature of obligation each of the two things required by the judgment is. Which among the status of the object or substitutability, the execution decision, performance of the counter-obligation, and the receipt record has been secured also cannot be confirmed from this scene alone. Therefore substitutability cannot be fixed by this scene, and the items not fixed remain unresolved. The state of being unresolved means only that there is no data and does not immediately mean that relief is unavailable. So long as unconfirmed facts are not filled in by guesswork, the determination in this section remains at the expressly stated conditional distinction.
The conclusion this section permits is narrow. Only where it is confirmed that the act the debtor did not perform is an act not exclusively personal to the debtor may the creditor, along the path set by Article 389 of the Civil Act, apply to the court to have a third party perform that act at the debtor's expense, and that claim is decided by the court of first instance pursuant to Article 260 (1) of the Civil Execution Act. Conversely, if the act is confirmed to be an act exclusively personal to the debtor, the option of substitution execution stops there. What change reverses a stage determination already made also rests on the same distinction. If the confirmation of a substitutable act changes to a confirmation of an act exclusively personal to the debtor, the blocking determination or effectiveness determination previously made on the assumption of substitutability can no longer stand as it is, and the stage is determined anew. This determination does not answer how the quality of substituted performance or the bearing of costs stands.
3.6The Strongest Counterargument and the Answer
On the premise that statutory execution for the delivery of movables is a method by which the court execution officer takes the object from the debtor and delivers it to the creditor, the question whether someone else can do what the debtor does not do has already been addressed. Next, on the basis that the quality of substituted performance may differ from what was originally promised, the issue is whether that difference in quality is a reason that justifies converting a substitutable act into even an act exclusively personal to the debtor.
The quality of substituted performance may differ from what was originally promised. Article 389 (2) of the Civil Act provides: "Where the object of the obligation is an act not exclusively personal to the debtor, the creditor may apply to the court to have a third party perform it at the debtor's expense." The subject fixed by this text is the debtor, the object is an act the debtor does not perform, and the condition is that the act is not exclusively personal to the debtor. Here, an act exclusively personal to the debtor means an act that only the debtor in person may perform, while a substitutable act means, in contrast, an act that another person may perform in the debtor's place.
Connecting that text with the conclusion of this section, substitution execution is an option that may be discussed only after the condition of a substitutable act is satisfied. Accordingly, in the statutory cases such as that of a substitutable act, a substitution execution decision is sought upon the creditor's application. Article 260 (1) of the Civil Execution Act provides: "In the cases of the latter part of Article 389 (2) and paragraph (3) of the Civil Act, the court of first instance shall, upon application of the creditor, render a decision under the provisions of the Civil Act." The reason the two stages must be distinguished is that the determination whether another person can perform in the debtor's place comes first, and the claim for a substitution execution decision comes after.
The strongest counterargument arises from the point that compelling an act only the debtor may perform may infringe personality and freedom. In a judgment requiring B's declaration of intention, the method of seeking a judgment in lieu of that declaration appears to manufacture and insert B's will in his stead, producing inconvenience and loss. This answer does not erase the disadvantage of the counterargument. It merely makes clear that the option of substitution execution is open only for substitutable acts, and it does not forcibly extend that option.
The facts confirmed in the synthetic scene are limited. Comparing these facts with the foregoing conditions, whether the performance of B's declaration of intention is an act exclusively personal to the debtor or a substitutable act is not settled by the scene alone. The determinative records—the content of the performance, the status of the object, substitutability, the execution decision, performance of the counter-obligation, and the receipt record—have been fixed, but actual records have not been collected. Accordingly, the determination as to which method of compulsion is available in this scene remains unresolved.
The conclusion this section permits is that an act exclusively personal to the debtor cannot simply be converted into a substitutable act. Substitution execution is an execution that may be discussed only for acts that another may perform in the debtor's place, and the use of that option outside that scope is not permitted. Yet relief cannot be flatly declared unavailable merely because data are lacking, nor may the fact that a legal path is open be restated as the result of actual payment or delivery. Which performance is an act exclusively personal to the debtor remains open.
3.7The Link to the Application and the Dispositive Part
The preceding section took as its premise that an act exclusively personal to the debtor cannot simply be converted into a substitutable act. Holding to that premise and entering the present question, what remains is the question whether someone else can do what the debtor does not do. This question asks who executes the performance with their own hands, and calls for an examination of whether everything for which there is no collaborator must be attributed to a matter of will.
Two provisions of law possess text answering that question. Here the subject is the creditor who may bring the claim, the act is an act not exclusively personal to the debtor, and the condition is that the act is the object of the performance. The body that adjudicates the decision is the court of first instance, and the textual impetus is the creditor's application.
Taking this text as its basis, the conclusion of this section is that, in the statutory cases such as that of a substitutable act, a substitution execution decision is sought upon the creditor's application. The reason for dividing the two stages of determination here is that fixing the nature of the performance as already substitutable and choosing the corresponding method of compulsion are different matters. Only by looking first at substitutability does the form of a decision ordering the bearing of the debtor's expense and performance by another person open up. Conversely, if that nature is not substitutable, that option is closed earlier by the same text.
Performance that does not pass through the debtor's own hands may not produce a result entirely identical to what was directed, leaving the creditor the inconvenience of having to be content with a realization different from what was promised. Alongside this, it is also pointed out that compelling an act only the debtor may perform may infringe personality and freedom. The conclusion cannot be maintained while erasing these two disadvantages, but the scope of the answer is set. It is not permitted to manufacture substitutability merely because a difference in quality is suspected, and if it is shown to be exclusively personal, the very option of turning that act into an object of substitution execution is closed.
The facts belonging to this section within the synthetic scene are narrow. Whether delivery of a specific object is a substitutable act, whether that object presently exists and in whose hands it is, whether B's declaration of intention has a juristic act as its object, or whether performance of a counter-obligation remains—none of these records is fixed in the scene. The state in which substitutability and the status of the object are unconfirmed is one of being unresolved, and being unresolved does not immediately mean that relief is unavailable.
Accordingly, the conclusion this section permits is that, where it is confirmed that the performance is substitutable as an act not exclusively personal to the debtor and the creditor's application exists, a substitution execution decision of the court of first instance may be sought. Alongside this, the conclusions this section does not permit are converting an act exclusively personal to the debtor into a substitutable act on the basis of difference in quality alone, and writing as though execution has already been accomplished before the requirements are met.
3.8The Scope This Section Undertakes
Separately from whether the enforcement officer can directly move the object to be delivered, the question is whether creditor A alone can bring about the act required of B by that judgment.
Here, an act to be performed means an act that the debtor ought to perform, and an act that is not exclusively personal refers to an act of such nature that, by reason of the nature of the act, the content of the obligation is realized even when another person performs it in the debtor's stead. Even after debtor B himself refuses or neglects the work, if another person can do it, the provision opens the way to apply to the court for performance to be carried out through that other person.
That decision is enforcement by which another person performs at the debtor's expense, and this enforcement is called substitutionary enforcement. The determination of whether substitution is possible and the stage of a decision upon application are distinct. The former is a question of defining the nature of the act, while the latter is the procedure by which, once that nature has been confirmed, the creditor files an application and the court permits it by decision.
What another person performs in the debtor's stead cannot always be identical to the manner expected when debtor B performed the act himself. While leaving aside the inconvenience of the quality degradation pointed out by the counterargument, that inconvenience is a matter to be examined only within the range of what is substitutable. An act that no other person can perform in the debtor's stead cannot be realized without the cooperation of the debtor himself, and so, however great any inconvenience may be, the conclusion cannot be altered by treating that act as substitutable.
The facts relevant to this question in the synthetic scene are that creditor A obtained a judgment requiring delivery of a specific object and a declaration of intention by defendant B. Whether the kind and content of the act ordered by the judgment is a substitutable act or an act exclusively personal is not established by this scene alone. Accordingly, whether the delivery of a specific object may be handled by the enforcement officer taking the object and delivering it, and whether the declaration of intention by B is of a nature that another person can perform in his stead, remain unverified. The criterion for judgment, however, is clear.
The conclusion this section permits is that the way of substitutionary enforcement is opened only where another person can do what the debtor fails to do. Substitutionary enforcement is enforcement by which another person performs at the debtor's expense, and its execution is placed on the legal channel only when a substitutionary enforcement decision upon the creditor's application has been put in place. This judgment means that the legal channel is opened; it does not mean that actual performance has been completed or that expenses have been recovered. Conversely, if acts that no other person can perform were also left as substitutable, that boundary would collapse. This section does not determine who is to bear those expenses.
3.9Application of the Text of the Provisions and the Holdings of Precedents
The present question lies in discerning how a provision worded in this manner applies to the actual carrying out of non-monetary performance.
Among the original texts corresponding to this question, Article 389 of the Civil Act provides as follows. This wording divides the subject into the debtor and a third person, does not limit the act to performance by the debtor himself, and takes as its condition an act that is not exclusively personal. And it fixes the court as the counterparty of the claim, enabling the creditor to file an application.
Article 260 of the Civil Execution Act determines the form in which that application is processed. "In cases under the latter part of paragraph (2) and paragraph (3) of Article 389 of the Civil Act, the court of first instance shall, upon application by the creditor, render a decision in accordance with the provisions of the Civil Act" (Article 260 of the Civil Execution Act). Joining this wording to the foregoing wording of the Civil Act yields the flow of seeking a substitutionary enforcement decision upon the creditor's application in the statutory cases of substitutable acts and the like. The stage of seeking a decision and the stage of choosing the method of enforcement are separate. If these two are mixed, it reads as though the method had been fixed before the nature of the obligation was even examined.
The point that the quality of substitute performance may differ from the original promise does not eliminate this distinction. If another person does what the debtor undertook to do, the completed result may not be the same as the promise, and that difference remains. The relevant wording places a limitation, making an act that is not exclusively personal the object of substitute performance. A substitutionary enforcement decision may be sought only within the bounds that observe that limitation.
Returning to the synthetic scene, of the two things demanded by creditor A, the delivery of a specific object and the declaration of intention by defendant B differ in nature. If the object remains and another person can move it, the delivery is closer to a substitutable act. By contrast, the declaration of intention may have a nature entrusted to the cooperation of defendant B himself. However, since this scene alone does not confirm whether the object presently exists or who can perform the act, these remain undetermined.
The conclusion this section permits is this narrow range. Only the wording of the relevant original text is used as the basis for judging the actual carrying out of non-monetary performance. Extended grounds or the requirements of other provisions cannot be brought in to replace that wording.
3.10Fine Distinctions Within the Stage
The statutory enforcement of delivery of movable property, addressed at the preceding stage, was of the kind in which the enforcement officer takes the object from the debtor and delivers it to the creditor. Following the question whether another person can do what the debtor does not do, the next inquiry is what parts are again to be separately judged within the actual carrying out of non-monetary performance.
The wording that responds to this question is paragraph (2) of Article 389 of the Civil Act. The relevant Article provides: "(2) Where the obligation under the preceding paragraph has as its object a juristic act, a judgment substituting for the declaration of intention of the debtor may be claimed; where it has as its object an act not exclusively personal to the debtor, the court may be requested to have a third person perform such act at the expense of the debtor" (Article 389 of the Civil Act). This wording indicates that the creditor is the subject of the claim, that the judgment in lieu of the debtor or performance by a third person is the act, and that the case where the object is a juristic act and the case of an act not exclusively personal are the respective conditions. Article 260 of the Civil Execution Act states: "(1) In cases under the latter part of paragraph (2) and paragraph (3) of Article 389 of the Civil Act, the court of first instance shall, upon application by the creditor, render a decision in accordance with the provisions of the Civil Act" (Article 260 of the Civil Execution Act), thereby making clear that the subject of the decision upon that application is the court of first instance.
That wording and the conclusion of this section connect as follows. Where the requirements and decisions suited to the nature of the performance—for delivery, substitutionary enforcement, indirect compulsory execution, and enforcement of a declaration of intention—are in place, execution operates. Where the obligation is of a nature that cannot be carried out by the chosen method of compulsion, or where requirements remain, such as a counter-obligation arising from a conditional declaration of intention, execution is blocked. These two judgments must be kept apart because, while the former examines the fitness of the method to the nature of the performance, the latter examines the method and the remaining conditions of the requirements. Here, substitutionary enforcement means enforcement by which another person performs at the debtor's expense, and only by comparing the conditions of performance and the remaining requirements within the same term does the judgment diverge. This distinction is limited to the stated conditions and creates no additional stage.
The strongest counterargument aims at the point that the quality of substitute performance may differ from the original promise. When the debtor does not perform in the manner he promised, even if another person produces the same result, the method, degree of completion, and timing may differ, and the loss and inconvenience remain that this is not the performance the creditor expected. On the other hand, the value is raised that compelling an act only the debtor can perform may infringe personality and freedom. Even so, the foregoing answer is not shaken. That is to say, on the sole ground that the quality of substitute performance may differ, an act personal to the debtor cannot be converted into an act that another person can perform in his stead and brought into the choice of substitutionary enforcement.
Taking out only the relevant facts of the synthetic scene, creditor A obtained a judgment requiring delivery of a specific object and a declaration of intention by defendant B, but asks whether it can be enforced in the same manner. Depending on whether the content of the performance is the delivery of a specific object or the declaration of intention by defendant B, the objects of comparison—the status of the subject matter and its substitutability, the enforcement decision, performance of the counter-obligation, and the record of receipt—differ. Where it is not confirmed whose act it is to perform, or whether the subject matter exists, no judgment can be made from this scene alone, and these remain undetermined. However, if one confirmed condition is examined, once a substitutable act is confirmed to be an act exclusively personal, the choice of substitutionary enforcement is halted. This is only an examination that changes the conditions of judgment, not additional facts of an actual case, and matters that cannot be judged from the scene as a whole must be left as they are.
The conclusion permitted in this section remains within the distinction of the stated conditions. Judging separately—where the requirements and decisions suited to the nature of the performance are in place; where the method of compulsion does not fit the nature or requirements remain; and where the party who is to perform or the status of the subject matter is unconfirmed—is all that this section permits. Conversely, conclusions not permitted are adding new stages beyond those three cases, or, on the ground that the quality of substitute performance differs, treating an act exclusively personal as naturally convertible into a substitutable act.
3.11Synthesis of Effectiveness, Blockage, and Undetermination
In this scene, the performances pronounced by the judgment differ in nature. One is delivery, which moves an object as the subject matter; the other is a declaration that brings debtor B's intention to the outside. The statutory enforcement of delivery of movable property, addressed in the preceding section, is of the kind in which the enforcement officer takes the object from the debtor and delivers it to the creditor, and this time the question remaining is whether that manner can be applied as it stands to the two performances. The task at hand is to set the criterion that distinguishes whether actual carrying out has been opened or blocked, or whether it has neither been opened nor blocked as yet.
Article 389 of the Civil Act provides that "where the obligation under the preceding paragraph has as its object a juristic act, a judgment substituting for the declaration of intention of the debtor may be claimed," and continues that "where it has as its object an act not exclusively personal to the debtor, the court may be requested to have a third person perform such act at the expense of the debtor" (Article 389 of the Civil Act). Here, an obligation whose object is a juristic act refers to the case where the act of expressing the intention externally is itself the content of the performance, and an act not exclusively personal means an act by which the same result can be produced even when a person other than the debtor performs it. This wording together determines which subject claims what, and under what conditions. The subject making the claim is the creditor; the judgment in lieu or performance by another person opens by a claim to the court, and its object is divided according to the nature of the performance.
The Civil Execution Act provides that "in cases under the latter part of paragraph (2) and paragraph (3) of Article 389 of the Civil Act, the court of first instance shall, upon application by the creditor, render a decision in accordance with the provisions of the Civil Act" (Article 260 of the Civil Execution Act). Only by passing through this decision procedure does substitutionary enforcement, that is, enforcement by which another person performs at the debtor's expense, open into actual carrying out. The reason the foregoing wording divided the performance into juristic acts and other acts is that the methods of compulsion corresponding to these two differ. The judgment in lieu of a declaration of intention targets the changing of rights by a judgment that substitutes for the intention, while substitutionary enforcement targets another person performing the same act. The reason these two stages must be distinguished is that only a performance whose requirements and decisions are in place opens, and an obligation of a nature that cannot be carried out by the chosen method of compulsion is blocked by that method. This distinction leads to the judgment that, where the requirements and decisions suited to the nature of the performance—for delivery, substitutionary enforcement, indirect compulsory execution, and enforcement of a declaration of intention—are in place, actual carrying out is opened.
The counterargument that the quality of substitute performance may differ from the original promise targets the loss that the result performed by another person may not be the very performance promised by the debtor himself. For example, if a third person performs, at the same expense, an act that was to be carried out with a particular touch or in a particular manner, the resulting product may diverge from the promise, and that difference diminishes the value the creditor expected from the contract. Even without erasing this disadvantage, the conclusion holds. An act that only the debtor can perform does not become the same performance merely because another person performs it in his stead, and so the choice of substitutionary enforcement cannot be regarded as open to that act in advance. The difference in quality pointed out by the counterargument rather supports that boundary, and the concern over infringement of personality and freedom likewise remains on the same line.
The fact confirmed in the synthetic scene is only that the two performances were pronounced together in one judgment. Before the delivery of a specific object, if it is confirmed that the subject matter actually exists, that its status has been ascertained, and that delivery is possible in the manner of the enforcement officer, it is determined whether actual carrying out is opened for that performance. Before the declaration of intention by defendant B, the question first is whether a judgment substituting for the debtor's declaration of intention may be claimed, and that determination is bound by the conditions of the wording seen above. However, since the scene does not confirm whose act it is to perform, or whether the subject matter that is the specific object actually exists, these items remain undetermined. Undetermined means that the material is not yet at hand; it does not mean that relief is impossible.
Accordingly, the judgment on actual carrying out divides into three. Where the requirements and decisions suited to the nature of the performance—for delivery, substitutionary enforcement, indirect compulsory execution, and enforcement of a declaration of intention—are in place, execution is opened; where the obligation is of a nature that cannot be carried out by the chosen method of compulsion, or where requirements remain, such as a counter-obligation arising from a conditional declaration of intention, it is blocked by that method. Where it is not confirmed whose act it is to perform, or whether the subject matter exists, it is left undetermined. That substitutionary enforcement is opened means that the legal channel by which another person performs at the debtor's expense has been opened; it does not mean that actual payment, delivery, or recovery has been achieved.
3.12Conclusion Carried Over to the Next Section
Whether another person can perform an act the debtor does not perform, and what is handed over to the next section at the end of that line of argument, is the question now at hand. The conclusion reached up to the preceding section is taken up in a single sentence only: execution for the delivery of movables by court order proceeds in the manner of a court enforcement officer taking the object from the debtor and delivering it to the creditor. The problem placed behind this conclusion is to ascertain what remains when a performance is encountered that cannot be transferred to that manner as it stands.
The statutory provision corresponding to this question is Article 389, paragraph (2) of the Civil Act. Here, an obligation whose object is a juristic act and an obligation whose object is an act that is not exclusively personal to the debtor are placed on separate paths. The former is the path of claiming a judgment that substitutes for the debtor's declaration of intention; the latter is the path of having another person do the act.
The reason these two paths are not merged into one is that how a given performance is to be executed differs according to the character of the path. Article 260, paragraph (1) of the Civil Execution Act provides that, in the cases of the latter part of Article 389, paragraph (2) and paragraph (3) of the Civil Act, the court of first instance shall, upon application of the creditor, render a decision under the provisions of the Civil Act (Civil Execution Act Article 260). That is, for an obligation whose object is an act that is not exclusively personal to the debtor, upon the creditor's application and through the stage of the court's decision, the manner of having a third person do the act at the debtor's expense opens up—that is, substitute execution. Substitute execution means execution in which another person performs at the debtor's expense, and this definition already places the party bearing the expense within its premise.
The strongest counterargument is that the quality of substitute performance may differ from what was originally promised. An act that a third person performs in place of the debtor may fail to reproduce with equal precision the manner the debtor personally promised, and that difference may diminish the value of the performance the creditor expected. It is also directed at the point that compelling an act that only the debtor can perform may infringe personality and freedom. The fact that quality may differ does not, after all, create anew the quality of being substitutable.
What is actually confirmed in the synthetic scene is only the fact that two performances—the delivery of a specific object and the demand for a declaration of intention—are placed within one judgment. If the performance requiring delivery falls under an act that is not exclusively personal to the debtor, the path of substitute execution opens; the performance requiring a declaration of intention, however, remains on the path of claiming the judgment prescribed in the first part of Article 389, paragraph (2) of the Civil Act. The condition of the object at hand, its substitutability, and whether the debtor has performed the counter-obligation are not confirmed by this scene alone and are therefore left undetermined.
The conclusion this section permits is that, only for an obligation whose object is an act that is not exclusively personal to the debtor, upon the creditor's application and by decision of the court, the path opens for another person to perform at the debtor's expense. This does not mean that another person can perform in place of the debtor every act the debtor does not perform, or that even acts exclusively personal to the debtor can be converted in that manner. What must be dealt with in the next section is the problem after that path opens. Who first provides the cost of having the performance done in place?