Summary
The effect of a judgment ordering a declaration of intent upon becoming final is distinguished from the effect arising under an execution clause after performance of the counter-obligation.
6.1The Standard by Which the Path Opens
The intention that the law substitutes through a judgment and the debtor's actual cooperation do not follow the same route. If the debtor ultimately refuses to sign, is a change in rights also impossible? In the preceding section, I distinguished the permissibility depending on the nature of the obligation and damages orders based on the time for performance and non-performance from the realization of the original performance. Taking that distinction as a premise, the question that remains now concerns not the signature but the criterion of the threshold for entering that stage. Creditor A has obtained a judgment ordering the delivery of a specific thing and the declaration of intent by Defendant B, and asks whether it can be enforced in the same way. Whether this way of asking is correct must be verified.
The provision that answers this question is Article 263 of the Civil Execution Act. Paragraph (1) thereof provides: "①Where the debtor has acknowledged the establishment of the legal relationship, it shall be deemed, by the protocol thereof, that the debtor has acknowledged the establishment of the legal relationship or made a declaration of intent; where a judgment ordering a declaration of intent has become final and conclusive, it shall be deemed, by that judgment, that the debtor has acknowledged the establishment of the legal relationship or made a declaration of intent" (Civil Execution Act, Article 263). This text pairs two elements—a judgment ordering a declaration of intent and the final and conclusive status of that judgment—and prescribes the effect of deeming, by that final and conclusive judgment itself, that the debtor has acknowledged the establishment of the legal relationship or made a declaration of intent. The subject indicated by this text is the debtor, the act is the declaration of intent, and the condition is that the judgment ordering such declaration has become final and conclusive.
Connecting that basis with the conclusion of this section reveals that what finality produces is not the physical performance of a signature but the effect of deeming the declaration to have been made. Here, enforcement of a declaration of intent means the effect of deeming a declaration of intent to have been made by a court judgment or the like. There is a reason why this definition must not be placed on the same route as the delivery of a thing demanded earlier. Delivery is a performance that follows the requirements and decisions of delivery, substitute execution, and indirect enforcement suited to the nature of the performance, whereas enforcement of a declaration of intent is the effect of deeming the declaration to have been made by finality. The conclusion that the entrance to this remedy opens follows from asking each of the two in the manner suited to its own nature.
The objection that presses back most strongly is that substantive recovery is delayed. Registration and other subsequent procedures may remain, so that even where the effect of deeming the declaration to have been made has arisen, it may take more time before the form of the right actually changes; and criticism is also attached here that the way in which the law deems a person who ultimately refuses to sign to have made the declaration may infringe personality and freedom. The answer that survives without erasing these disadvantages is narrow. Even where a counter-obligation condition exists, one cannot write that the effect arises by finality alone. That is precisely why paragraph (2) of Article 263 separately provides: "②Where the acknowledgment of the establishment of the legal relationship or the declaration of intent is to be made after the counter-obligation has been performed, the effect arises when the enforcement clause is issued in accordance with the provisions of Articles 30 and 32" (Civil Execution Act, Article 263).
In the synthetic scene, the facts bearing on this question are narrow. The performance demanded is set together as the delivery of a specific thing and B's declaration of intent, and Creditor A asks whether this judgment can be enforced in the same way. Whether the content of the performance, the status of the object, the possibility of substitution, the enforcement decision, the performance of the counter-obligation, and the records of receipt actually exist is not confirmed. What can be determined from this scene is only a conditional comparison: whether the performance demanded, the parties, and the conditions are specified in the prayer for relief, and whether the requirements and decisions suited to each performance have been met. If an act capable of substitution is confirmed to be an act strictly personal in nature, the option of substitute execution is halted. Where it has not been confirmed whose act it is that may be performed, or whether the object exists, that part remains undetermined.
The conclusion this section permits is this: where the requirements and decisions of delivery, substitute execution, indirect enforcement, and enforcement of a declaration of intent suited to the nature of the performance have been met, and the performance demanded, the parties, and the conditions are specified in the prayer for relief so that the right asserted by the chosen action can be defended, the entrance to this remedy opens. What opens here is a legal channel; it does not mean that actual results of payment, delivery, or recovery have already been achieved. Conversely, the conclusions the section does not permit are a determination that a change in rights is immediately impossible for want of the debtor's signature, or a determination that the effect arises by finality alone even though a counter-obligation condition remains. This distinction decides whether the matter turns on the signature or on the nature.
6.2The Conditions That Block Relief
The text corresponding to this question is Article 263 of the Civil Execution Act. Paragraph (1) provides: "Where the debtor has acknowledged the establishment of the legal relationship, it shall be deemed, by the protocol thereof, that the debtor has acknowledged the establishment of the legal relationship or made a declaration of intent; where a judgment ordering a declaration of intent has become final and conclusive, it shall be deemed, by that judgment, that the debtor has acknowledged the establishment of the legal relationship or made a declaration of intent" (Civil Execution Act, Article 263). Here the subject is the debtor under the judgment ordering a declaration of intent, the act is the declaration of intent, and the condition is the judgment becoming final and conclusive. What this text addresses is not the debtor's actual signature but the effect of deeming the declaration to have been made by the law.
The deemed effect recognized upon finality alone under paragraph (1) and the effect in cases where the declaration is deemed to be made only after the counter-obligation has been performed are placed at different stages. Paragraph (2) of Article 263 provides: "Where the acknowledgment of the establishment of the legal relationship or the declaration of intent is to be made after the counter-obligation has been performed, the effect arises when the enforcement clause is issued in accordance with the provisions of Articles 30 and 32" (Civil Execution Act, Article 263). Where the obligation is of a nature that cannot be performed by the compulsory method chosen, or where requirements such as the counter-obligation of a conditional declaration of intent remain, enforcement is not possible unless every statutory requirement is satisfied. The reason for separating the two effects is that this distinction places finality and the issuance of the enforcement clause at different gates.
The strongest objection departs from the point that substantive recovery may be delayed because registration and other subsequent procedures remain. Even though the legal relationship may appear to have been determined upon the judgment becoming final and conclusive, separate procedures may remain before Creditor A actually obtains the specific thing or completes registration. There is also the risk that the object may be transferred or its value altered in the meantime, and the criticism is also aimed at the point that compelling an act only the debtor can perform may infringe personality and freedom. Confirming the delay of the remaining subsequent procedures is no ground for skipping the requirements of paragraph (2).
In the synthetic scene, only two facts bear on this question. One of the performances demanded by A is B's declaration of intent, and the condition is given that B ultimately did not sign. These facts alone do not confirm whether B's declaration of intent is an act strictly personal in nature, whether it is a conditional declaration requiring performance of the counter-obligation, or whether the counter-obligation has already been performed and records of receipt exist. Accordingly, from this scene alone it cannot be determined whether the effect of finality under paragraph (1) applies immediately, or whether the stage of issuing the enforcement clause under paragraph (2) is required first. If an act capable of substitution is confirmed to be strictly personal in nature, the option of substitute execution is halted.
The conclusion this section permits is narrow. Enforcement of a declaration of intent means the effect of deeming a declaration of intent to have been made by a court judgment or the like, and whether that effect arises by the judgment becoming final and conclusive alone, or arises together with the issuance of the enforcement clause after performance of the counter-obligation, turns on the conditions of the performance. The conclusion not permitted is the sentence generalizing that, even without the debtor's signature, a change in rights is immediately fixed in every case. Conversely, the categorical assertion that, by the mere absence of a signature, a change in rights is forever impossible is also an answer outside the distinction this section has established.
6.3The Boundary That Remains When There Is No Data
The preceding stage distinguished the permissibility depending on the nature of the obligation and damages orders based on the time for performance and non-performance from the realization of the original performance. Whether the two performances contained in the same judgment can be compelled in the same way remains open. Beyond that arises the question whether a change in rights is impossible if the debtor ultimately refuses to sign. Whether the preceding distinction acquires substance turns on how the law treats the silence of a debtor who does not sign.
The relevant text lies in Article 263 of the Civil Execution Act. Paragraph (1) provides: "Where the debtor has acknowledged the establishment of the legal relationship, it shall be deemed, by the protocol thereof, that the debtor has acknowledged the establishment of the legal relationship or made a declaration of intent; where a judgment ordering a declaration of intent has become final and conclusive, it shall be deemed, by that judgment, that the debtor has acknowledged the establishment of the legal relationship or made a declaration of intent." Here the subject is the debtor under the judgment ordering a declaration of intent, and the act is acknowledging the establishment of the legal relationship or making a declaration of intent. The condition is the time when that judgment becomes final and conclusive. Consequently, it is not the debtor's actual signature but the finality of the judgment that creates the effect of deeming the declaration of intent to have been made. This Article addresses solely the enforcement of a declaration of intent—that is, the effect of deeming a declaration of intent to have been made by a court judgment or the like.
The same Article does not bind together in a single way when that effect arises. In the case of paragraph (1), the effect of deeming the declaration of intent to have been made arises by finality alone. That is, for a declaration of intent to which the counter-obligation—the other party's performance—is attached as a condition, one cannot write that the effect arises by finality alone. The reason these two stages must be distinguished is that, at once, the possibility of a change in rights cannot be denied wholesale on the sole circumstance that the debtor ultimately did not sign, and, in cases where a condition is attached, one also cannot assert in advance that the effect arises by finality alone.
The strongest objection is aimed at the point that substantive recovery is delayed. Unlike a judgment ordering delivery, a judgment on a declaration of intent produces the effect of a change in rights, but registration and other subsequent procedures remain thereafter, so the recovery felt by the creditor may be delayed. The legal state in which the legal relationship has been formed and the state in which the creditor actually controls what he wants diverge. This disadvantage must not be erased. Finality does not itself substitute for performance of the counter-obligation, nor does it replace the issuance of the enforcement clause prescribed in paragraph (2). The delay the objection points out remains, and yet the stages at which the effect arises cannot be mixed and used as one.
Returning to the synthetic scene, Creditor A has obtained a judgment demanding both the delivery of a thing and the declaration of intent by Defendant B. As to the declaration-of-intent part, it must first be determined whether the effect of deeming the declaration to have been made arises at the time of finality, or whether the performance of the counter-obligation remains as a condition so that the effect arises only after the enforcement clause has been issued. The content of the performance, the status of the object, the possibility of substitution, the enforcement decision, the performance of the counter-obligation, and the records of receipt are the materials to be used for the determination. However, this scene is not a reproduction of an actual case, and whether further materials exist concerning the nature of the obligation and the possibility of substitution is also unsettled. Matters not confirmed, such as whose act it is that may be performed or whether the object exists, remain as items for which the materials for judgment are not specified. Those matters must be distinguished from a confirmation of impossibility.
Thus, on the sole circumstance that the debtor ultimately did not sign, it cannot be categorically asserted that a change in rights is impossible; conversely, one cannot say that finality alone always completes a change in rights. There are cases where the effect arises upon finality and cases where the effect arises upon the issuance of the enforcement clause after performance of the counter-obligation, and which side applies is determined only within the scope of the confirmed materials. Boundary matters that cannot be confirmed for want of materials are not pushed into the realm of impossibility but remain undetermined. The fact that they remain undetermined does not itself carry over to mean that relief is impossible. The delay of registration and other subsequent procedures is a matter to be recorded as it stands, and the existence of a condition is a matter that changes the stage at which the effect arises.
6.4The Records Needed for Determination
The preceding stage distinguished the permissibility depending on the nature of the obligation and damages orders based on the time for performance and non-performance from the realization of the original performance, and the question now remaining is on what record a change in rights is established when the debtor ultimately does not cooperate. To answer this question, one must first examine what has already been left in the records.
This text takes the debtor as the subject but places the protocol he actually signed and the final and conclusive judgment side by side. That is, the case where there is the debtor's actual cooperation and the case where the law substitutes his declaration by a judgment each rest on a different record. What is addressed here is the enforcement of an obligation to make a declaration of intent—in other words, the effect of deeming a declaration of intent to have been made at the time when a judgment ordering a declaration of intent becomes final and conclusive.
Paragraph ② of the same Article continues: "②Where the acknowledgment of the establishment of the legal relationship or the declaration of intent is to be made after the counter-obligation has been performed, the effect arises when the enforcement clause is issued in accordance with the provisions of Articles 30 and 32" (Civil Execution Act, Article 263). That is, the case where the final and conclusive judgment itself directly creates the effect and the case where the effect arises only after performance of the counter-obligation, together with the issuance of the enforcement clause, are distinguished. Therefore, the stage determination is made solely on the materials recorded in the content of the performance, the status of the object, the possibility of substitution, the enforcement decision, the performance of the counter-obligation, and the records of receipt, and gaps in the records are not filled by presumption. If one generalizes that the effect arises by finality alone, cases attaching a counter-obligation condition are missed.
The strongest objection is aimed at the points that registration and other subsequent procedures remain and substantive recovery is delayed, and that compelling an act only the debtor can perform may infringe personality and freedom. Even if the judgment substitutes for the signature, if the procedures remaining until recovery stand as they are, the point in time at which it reaches the creditor is delayed, and the manner in which compulsion reaches the debtor in the meantime must also be examined with care. The disadvantage the objection points out is left intact, yet the effect cannot be pulled forward by skipping the requirements that remain in the records.
What is confirmed in the synthetic scene is only the fact that a judgment demanding both the delivery of a specific thing and the declaration of intent by Defendant B has been obtained. Which of the items among the content of the performance, the status of the object, the possibility of substitution, the enforcement decision, the performance of the counter-obligation, and the records of receipt has been filled in is not settled here. Whether the debtor ultimately did not sign, and whether the counter-obligation has been performed, are also not confirmed from this scene alone. Accordingly, what records remain, whose act it is that may be performed, and whether the object exists remain undetermined in the parts not confirmed.
The conclusion this section permits is narrow. Even without the debtor's signature, he may be deemed to have made the declaration by the finality of the judgment ordering a declaration of intent, and there is separately the case where, after performance of the counter-obligation, the effect arises when the enforcement clause is issued. Beyond this, which compulsory methods have opened, and to what extent recovery has actually occurred, are not determined outside the materials contained in the records. A stage determination that fills the remaining records with conjecture, or a generalization that the effect arises by finality alone, is not permitted by this section.
6.5Circumstances That Change the Decision
Permissibility according to the nature of the obligation, together with the time for performance and an order of damages for non-performance, is distinguished from the realization of the original performance. The next question concerns the conditions under which that choice is maintained. The remaining question is whether a change in rights occurs even if the obligor never signs. This question turns not on whether the obligor cooperates but on the conditions of the effect that the judgment substitutes for.
The relevant text for this question is Article 263 of the Civil Execution Act. Article 263 (Execution of an Obligation to Make a Declaration of Intention) (1) Where the obligor has acknowledged the establishment of a legal relationship, such acknowledgment is deemed made by the written record; where a judgment ordering the statement of intention has become final and conclusive, the obligor is deemed to have acknowledged the establishment of the legal relationship or to have made a statement of intention by that judgment. This provision defines the relevant act as the obligor's acknowledgment of the establishment of a legal relationship or a statement of intention, and adduces the written record or the final and conclusive judgment as the basis for deeming that act to have been performed. Accordingly, the subject is the obligor, the act is an acknowledgment or a statement of intention, and the condition is the preparation of the written record or the becoming final and conclusive of the judgment. Other paragraphs of the provision and other methods of execution are not addressed at this point.
The effect of a final and conclusive judgment under paragraph (1) of Article 263 must be read apart from the effect that follows performance of the counter-performance obligation under paragraph (2) of the same Article. Paragraph (2) provides that where the obligor is to acknowledge the establishment of the legal relationship or make a statement of intention after the counter-performance obligation has been performed, the effect arises when the execution clause is issued in accordance with the provisions of Articles 30 and 32 (Civil Execution Act, Article 263). The reason for this distinction is that the time at which the effect arises and the act presupposed by it differ. Whereas paragraph (1) deems a statement of intention to have been made by the becoming final and conclusive of the judgment alone, paragraph (2) leaves in place the procedure of performance of the counter-performance obligation and the granting of the execution clause. Accordingly, one adjudicates separately the case where one can record that a change in rights occurred upon finality alone, and the case where the condition of counter-performance remains so that the effect does not arise upon finality alone. In the latter case, one cannot write that the effect arises upon finality alone.
The strongest counterargument targets the point that subsequent procedures remain. It is pointed out that, because subsequent procedures such as registration remain, substantive recovery may be delayed. In the case of paragraph (2), which passes through performance of the counter-performance obligation and the granting of the execution clause, even after the judgment becomes final and conclusive, a separate procedure and additional time are added before the creditor actually exercises the right. That delay is disadvantageous to the creditor and reveals the gap between the fact that a final and conclusive judgment has already been rendered and actual recovery. Even without erasing this inconvenience, the conclusion is maintained. The counterargument merely explains that recovery is delayed; it does not convert the wording of paragraph (2), which makes performance of the counter-performance obligation a precondition of the effect, into something satisfied by finality alone.
Returning to the synthetic scene and setting side by side only the facts belonging to this question, a judgment has been obtained demanding the delivery of a specific object and B's declaration of intention together. The portion concerning B's declaration of intention falls within the object of the effect of execution of a declaration of intention—that is, the effect of being deemed to have made a statement of intention through court proceedings or the like. Whether the effect of paragraph (1) arises when this judgment becomes final and conclusive, or whether it is a case under paragraph (2) requiring an execution clause after performance of the counter-performance obligation, differs according to the records. The current status of the object, whether the counter-performance obligation has been performed, and the record of the granting of the execution clause have not been confirmed, and thus remain undetermined.
What this section permits is recording the effect of being deemed to have made a statement of intention, to the extent that the requirements of preparation of the written record or the becoming final and conclusive of the judgment are met even if the obligor never signs. What it does not permit is asserting, where a counter-performance obligation remains, that a change in rights has been completed by finality alone.
6.6The Strongest Counterargument and the Answer
The question whether, if the obligor never signs, a change in rights too becomes impossible is narrowed here to whether a change in rights occurs by itself even though the judgment became final and conclusive because the obligor never signed. Subsequent procedures such as registration may remain so that substantive recovery is delayed. It is precisely at this point that the final and conclusive effect subject to the counter-performance condition is at issue.
The relevant wording is as follows. 'Article 263 of the Civil Execution Act' provides that (1) where the obligor has acknowledged the establishment of a legal relationship, the acknowledgment is deemed made by the written record; where a judgment ordering the statement of intention has become final and conclusive, the obligor is deemed to have acknowledged the establishment of the legal relationship or to have made a statement of intention by that judgment. Here the subject is the obligor, the act is the acknowledgment of the establishment of a legal relationship or the statement of intention, and the condition is the becoming final and conclusive of the judgment. Paragraph (2) sets the timing in that case separately, providing that where the obligor is to make such acknowledgment or statement after the counter-performance obligation has been performed, the effect arises when the execution clause is issued in accordance with the provisions of Articles 30 and 32.
The distinction between paragraphs (1) and (2) arises from the difference between the two stages of judgment. Paragraph (1) confers the effect of deeming the statement of intention to have been made by finality itself, but in the case of paragraph (2), the condition of being after performance of the counter-performance obligation remains, so one cannot write that the same effect arises upon finality alone. This distinction goes beyond the presence or absence of the obligor's signature; the reason lies in taking two different points in time—finality and the execution clause.
It is a considerable inconvenience that, because subsequent registration and the like remain, substantive recovery is delayed. Even so, if one writes that the effect arises upon finality alone, a loss occurs in which the condition of performance of the counter-performance obligation becomes meaningless. The author maintains the conclusion that, even where a counter-performance condition exists, one cannot write that the effect arises upon finality alone. However, since this conclusion does not automatically fill the remaining requirements, the disadvantage that actual performance and recovery may be delayed remains as it is.
In the judgment in this scene, two performances—delivery and a declaration of intention—are laid side by side, and it is not confirmed whether a counter-performance condition is attached to the declaration-of-intention side. Neither the current status of the object nor the record of performance and receipt of the counter-performance obligation is confirmed; accordingly, whether the counter-performance condition is satisfied cannot be determined from this scene.
The conclusion permitted by this section is the distinction that, in the case of paragraph (2), one cannot write that the effect arises upon finality alone, going no further than refraining from mixing this with the finality effect of paragraph (1). What is not permitted is a conclusion that ends by saying that, even with a counter-performance condition, the effect arises upon finality alone. The judgment here is limited to the distinction in timing between finality and the execution clause; when actual recovery of rights will be achieved through subsequent registration is not determined from this scene.
6.7The Link to the Application and the Dispositive Part
It proceeds from the premise that, even where a counter-performance condition exists, one cannot write that the effect arises upon finality alone. When the obligor B ultimately refuses to sign, the question is whether that attitude of withholding consent prevents even the change in rights already determined by the judgment.
The wording that answers this question is found in Article 263 of the Civil Execution Act. Its paragraph (1) provides that "where a judgment ordering the statement of intention has become final and conclusive, the obligor is deemed to have acknowledged the establishment of the legal relationship or to have made a statement of intention by that judgment" (Civil Execution Act, Article 263). Here the subject is the obligor ordered to make a statement of intention, the act is the acknowledgment of the establishment of a legal relationship or a statement of intention, and the condition is the becoming final and conclusive of the judgment containing that order. The fact that the wording uses the expression 'deemed' means that one does not await the obligor's actual signature or seal, and that the final and conclusive judgment itself substitutes for the efficacy of the statement.
The two stages of judgment must be viewed separately. One is the case where the legal relationship is determined by deeming the statement to have been made on the basis of a final and conclusive judgment alone; the other is the case where the statement is reserved on the premise of performance of the counter-performance obligation. Accordingly, whether the effect of execution of a declaration of intention—that is, the effect of being deemed to have made a statement of intention through court proceedings or the like—arises divides into the case where it follows automatically from the fact of finality alone and the case where one must pass through the separate gateway of the granting of the execution clause.
The strongest counterargument targets the inconvenience of delayed recovery. Even if one obtains delivery of a specific object, subsequent procedures such as registration regarding that object remain, and actual recovery of rights may be postponed until those procedures are finished. To this is appended the concern that, if the obligor B refuses to sign in the midst of those procedures, the change in rights comes to a standstill. This loss must not be erased. Even if one acknowledges the inconvenience of delayed recovery, it cannot serve as a basis for drawing forward the time at which the effect arises to the point of finality.
The relevant facts in the synthetic scene are that the two performances required by the judgment stand side by side. One is the delivery of a specific object; the other is the demand for the declaration of intention of Defendant B. The former is a matter of proceeding by whichever method, among delivery suited to the nature of the performance, substitute execution, and indirect compulsory execution, has the requirements and decision in place; the latter is a matter of asking the route of substituting for the statement, examined above. However, in this scene, whether the counter-performance obligation has been performed, the timing of that performance, and whether an execution clause has been granted are not settled. Because those items are not confirmed, the time at which the effect of the statement arises cannot be determined from this scene alone, and it is left undetermined.
The conclusion permitted by this section is that the absence of the obligor's signature does not fundamentally block the substitutive effect of the statement of intention ordered by the judgment. Conversely, one cannot say that a change in rights occurs immediately in all cases merely because a final and conclusive judgment has been obtained, and where performance of the counter-performance obligation is a condition, the time at which the effect arises is set at the time the execution clause is issued. Refusal to sign must not be equated with the impossibility of a change in rights, nor may one assert that the change is always completed regardless of the absence of a signature.
6.8The Scope This Section Undertakes
Permissibility according to the nature of the obligation, together with the time for performance and an order of damages for non-performance, is distinguished from the realization of the original performance. What must be asked in this section is whether, if the obligor never signs, a change in rights too becomes impossible. This question is aimed at the route by which the act ordered by the judgment can be realized in actuality when the obligor refuses it.
The relevant wording is Article 263 of the Civil Execution Act concerning the execution of an obligation to make a declaration of intention. Its paragraph (1) provides that "where a judgment ordering the statement of intention has become final and conclusive, the obligor is deemed to have acknowledged the establishment of the legal relationship or to have made a statement of intention by that judgment." This wording proceeds on the premise that the subject who is to state the intention is the obligor, and makes clear the method of supplementing the absence of that statement by the becoming final and conclusive of the judgment. The effect seen here is conferred at the point when the standard prescribed by law is met, irrespective of whether the obligor actually signed, and the actual refusal of the act ordered by the judgment does not by itself prevent a change in rights.
That is, the reason one must distinguish the presence or absence of the obligor's signature from the legal deeming that follows the becoming final and conclusive of the judgment is that the former is a question of asking whether cooperation actually exists, and the latter a question of asking the attribution of the effect prescribed by law. If the two stages are collapsed into one, one will mistakenly describe a change in rights as impossible in every case where there is no signature. That distinction limits the scope of execution of a declaration of intention dealt with in this section and does not extend to the requirements for permissibility of other methods of compulsion.
However, the point most strongly targeted by the counterargument that subsequent procedures such as registration remain and substantive recovery may be delayed is precisely this scope of the effect of deeming. Even if a statement of intention is deemed made upon the becoming final and conclusive of the judgment, the entire process of change in rights is not thereby finished at once, and the timing and form of recovery depend on the progress of the remaining procedures. This disadvantage must not be erased. Even where a counter-performance condition exists, one cannot write that the effect arises upon finality alone, and if the requirements of fulfillment of the condition and issuance of the execution clause remain, one cannot presuppose the effect at that time.
What can be confirmed in this scene is only the fact that A obtained a judgment demanding both delivery of an object and the declaration of intention of B. Whether a counter-performance is attached to B's declaration of intention, whether the counter-performance obligation has been performed, and what subsequent procedures remain are not determined in this scene. Accordingly, the starting point of the effect cannot be determined from the scene alone, and the existence of the counter-performance obligation and whether it has been performed remain as unconfirmed items. However, the judgment that the effect upon the becoming final and conclusive of the judgment must be distinguished from the effect upon the execution clause is a minimal distinction that holds without presupposing those unconfirmed conditions.
What this section permits is the distinction between the effect of the becoming final and conclusive of the judgment and the effect of the execution clause after performance of the counter-performance obligation; it does not go beyond that distinction to specify the range within which a change in rights occurs even without the obligor's signature.
6.9Application of the Text of the Provisions and the Holdings of Precedents
In the preceding section, permissibility according to the nature of the obligation, together with the time for performance and an order of damages for non-performance, is distinguished from the realization of the original performance. On this premise, today's question is to determine which of the two aspects—finality and the execution clause—produces the effect.
The wording that answers this question is Article 263 of the Civil Execution Act. Its paragraph (1) provides that "where a judgment ordering the statement of intention has become final and conclusive, 'by that judgment'" the obligor is deemed to have acknowledged the establishment of the legal relationship or to have made a statement of intention. Here the subject is the obligor under the judgment ordering the statement of intention, the act is being deemed to have made a statement of intention in accordance with the final and conclusive judgment, and the condition is the becoming final and conclusive of that judgment. Acknowledgment by written record is dealt with separately in the same paragraph, but the present question is confined to the aspect of the final and conclusive judgment (Civil Execution Act, Article 263).
Paragraphs (1) and (2) separate the effect of finality from the effect of the execution clause. Paragraph (2) takes as its object acknowledgment or statement after the counter-performance obligation has been performed, and in that case states that the effect arises when the execution clause is issued in accordance with Articles 30 and 32 (Civil Execution Act, Article 263). In other words, in an unconditional order to make a statement of intention, the effect of deeming arises upon finality alone; but in an order to which performance of the counter-performance obligation is attached, that performance remains, so one cannot write that the same effect has arisen upon finality alone. Only by separating the two stages can one correctly fix the timing of the change in rights.
The strongest counterargument targets the delay of recovery. Subsequent procedures such as registration may remain so that substantive recovery is delayed, and compulsion of an act that only the obligor can perform may infringe personality and freedom. However, the weight of the remaining procedures cannot erase the existence of the counter-performance condition. Even where a condition is attached, one cannot write that the effect arises upon finality alone, and that inconvenience falls within the range this judgment is willing to bear.
In the synthetic scene, what is at issue between A and B is the combination of finality and counter-performance. Paragraphs (1) and (2) are divided according to whether the obligation under the judgment ordering delivery is of a nature that is settled together with finality, or whether performance of the counter-performance obligation is presupposed. The items to be recorded are the content of the performance, the status of the object, the possibility of substitution, the execution decision, and the record of performance and receipt of the counter-performance obligation, but from the scene alone one cannot know how each item has been filled in.
What this judgment permits is only the separation of the effect of finality from the effect of the execution clause. A conclusion that extends the finality of an unconditional order to make a statement of intention to cases where a counter-performance condition is attached is not permitted. What does execution of a declaration of intention mean in this judgment?
6.10Fine Distinctions Within the Stage
여기서 두 급부가 하나의 판결에 들어 있어도 실행 경로는 하나로 묶이지 않는다는 점을 전제로, 비금전 급부의 현실 실행 안에서 다시 나누어 판정할 부분이 무엇인지 살핀다.
민사집행법 제263조는 의사표시의무의 집행을 두 항으로 나누어 규정한다. 제1항은 “①채무자가 권리관계의 성립을 인낙한 때에는 그 조서로, 의사의 진술을 명한 판결이 확정된 때에는 그 판결로 권리관계의 성립을 인낙하거나 의사를 진술한 것으로 본다.”라고 정하고, 제2항은 “②반대의무가 이행된 뒤에 권리관계의 성립을 인낙하거나 의사를 진술할 것인 경우에는 제30조와 제32조의 규정에 따라 집행문을 내어 준 때에 그 효력이 생긴다.”라고 정한다. 여기서 주체는 채무자이고, 행위는 권리관계 성립의 인낙 또는 의사의 진술이며, 조건은 판결의 확정과 반대의무의 이행이다.
위 문언은 판단의 단계를 둘로 나누어 두었고, 그 구별이 이 절의 결론의 근거가 된다. 판결의 확정만으로 효과가 생기는 경우는 반대의무가 붙지 않은 의사표시의무이고, 반대의무 이행 뒤에 집행문을 내어 줄 때 효력이 생기는 경우는 그 반대의무가 남아 있는 경우이다. 비금전 급부의 현실 실행 안에서 다시 나누어 판정할 부분은 이 두 경우의 경계이고, 이 경계 안의 세부 구분은 작동하는 경우와 막히는 경우, 미확정인 경우로 표시한 조건에 한정된다. 작동하는 경우는 급부 성질에 맞는 인도와 대체집행, 간접강제, 의사표시 집행의 요건과 결정이 갖추어진 경우이고, 막히는 경우는 선택한 강제방식으로 수행할 수 없는 성질의 채무이거나 조건부 의사표시의 반대의무 등 요건이 남은 경우이며, 미확정인 경우는 누가 수행할 수 있는 행위인지 또는 목적물이 존재하는지 확인되지 않은 경우이다.
이 구분에 대한 반론은 등기 등 후속 절차가 남아 실질적 회복은 늦을 수 있다는 점을 겨눈다. 채권자 입장에서는 판결이 확정되어도 목적물이 제자리로 오지 않고, 뒤이은 등기와 인도의 시점이 늦어지면 그 판정이 가져다주는 실익이 줄어든다. 같은 반론은 채무자만 할 수 있는 행위를 강제하는 방식이 인격과 자유를 침해할 수 있다는 우려까지 나아가며, 그 불리한 부분을 지우지 않는다. 그렇더라도 앞의 답은 반대의무 조건이 있는 경우에도 확정만으로 효과가 생긴다고 쓸 수 없다는 것이다. 실질적 회복이 늦다는 사정은 효력의 발생 시점을 앞당기지 않고, 요건이 남아 있는 경우에는 그 요건의 성취를 기다려야 한다.
이 장면에서 실제로 확인되는 사실은 두 급부가 한 판결 안에 들어 있다는 것뿐이고, 목적물 현황과 대체 가능성, 집행결정, 반대의무 이행, 수령 기록은 확인되지 않아 미확정으로 남는다. 확정되었는지와 반대의무가 이행되었는지가 이 장면에서 확인되지 않으므로 어느 쪽 효과가 생겼는지 판정할 수 없다. 이는 자료 부족이며 곧바로 구제 불능을 뜻하지 않는다.
이 절이 허용하는 것은 반대의무의 유무에 따라 확정과 집행문의 효력을 나누어 읽는 것이고, 허용하지 않는 것은 확정만으로 반대의무 조건까지 넘어섰다고 보는 것이다. 급부 성질에 맞는 강제방식의 요건과 결정이 갖추어졌는지, 남은 요건이 무엇인지, 확인되지 않은 항목은 무엇인지를 그대로 구분해 두는 것으로 이 물음의 답은 끝난다.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
그 단계까지는 채무 성질에 따른 허용 여부와 이행기간·불이행에 따른 배상 명령을 원래 급부의 실현과 구분해 왔다. 이 장면에서 인도와 의사표시는 각각 급부 성질이 다른 두 급부로 놓여 있다. 그러므로 지금 묻는 것은 어느 급부를 어떤 방식으로 집행할 때 현실 실행의 길이 열리는지, 막히는지, 확인 전에 멈추는지이다.
제263조 제1항은 “의사의 진술을 명한 판결이 확정된 때에는 그 판결로” 권리관계의 성립을 인낙하거나 의사를 진술한 것으로 본다고 정한다. 여기서 다루는 주체는 의사의 진술을 명하는 판결을 받은 채무자이고, 그 행위는 의사 진술이며, 조건은 판결의 확정이다. 제263조 제2항은 “반대의무가 이행된 뒤에” 권리관계의 성립을 인낙하거나 의사를 진술할 것인 경우를 따로 두고, 제30조와 제32조의 규정에 따라 집행문을 내어 준 때에 효력이 생긴다고 적는다. 이 구절이 가리키는 주체는 같은 채무자이지만, 앞 항과 달리 반대의무의 이행과 집행문의 부여라는 조건이 남는다.
그 문언은 확정 판결에 따른 의사를 진술한 것으로 보는 효과와 반대의무 이행 뒤 집행문에 따른 효과를 나누어 둔다. 전자가 판결 확정이라는 사건을 요건으로 삼는 반면, 후자는 반대의무 이행과 집행문 부여라는 별도의 단계를 거치도록 한다. 이 둘을 왜 구별해야 하는가. 확정만으로 권리변동의 효과가 생기는 경우와, 반대의무라는 조건이 남아 확정만으로는 끝나지 않는 경우를 같은 기준으로 처리하면, 조건부 의사표시의 요건이 충족되지 않은 시점의 효과를 확정 시점의 효과로 바꾸어 읽게 된다. 따라서 열리는 조건은 급부 성질에 맞는 인도·대체집행·간접강제·의사표시 집행의 요건과 결정이 갖추어진 경우이고, 막히는 조건은 선택한 강제방식으로 수행할 수 없는 성질의 채무이거나 조건부 의사표시의 반대의무 등 요건이 남아 있는 경우이다.
이 구별에 반대하는 쪽은 회복의 늦음을 지적한다. 등기 등 후속 절차가 남아 실질적 회복은 늦을 수 있으며, 급부의 성질에 맞는 방식을 따로 갖추어도 채권자가 얻는 결과가 그만큼 늦어진다. 그 손실은 이론상의 차단이 아니라 기다리는 동안의 불편과 가치 감소로 나타난다. 이 반론은 법정 경로와 실제 회복 사이의 거리를 지우지 않은 채로 놓아둔다. 이 답은 회복이 늦다는 사실을 부정하지 않으면서, 조건이 남아 있는 경우에 확정만으로 효과가 생긴다고 단정하는 길을 닫는다.
합성 장면에서 확인되는 사실은 인도할 특정한 물건과 요구된 의사표시가 함께 놓여 있다는 것뿐이다. 급부 내용·목적물 현황·대체 가능성·집행결정·반대의무 이행·수령 기록은 판단에 쓸 자료의 종류로 정해 둔 것일 뿐, 그 기록이 채워진 것은 아니다. 목적물이 실제로 존재하는지, B의 의사표시를 대신할 행위가 누구에게 남아 있는지, 반대의무가 이미 이행되었는지는 이 장면만으로 확인되지 않는다. 이런 항목이 확인되지 않은 상태가 바로 미확정이고, 여기서는 확정 판결이 있는지 반대의무가 남아 있는지도 함께 살핀다.
이 절에서 허용하는 결론은 세 경우를 나누어 기록하는 것이다. 급부 성질에 맞는 방식의 요건과 결정이 갖추어진 경우 현실 실행의 길이 열리고, 선택한 강제방식으로 수행할 수 없는 성질의 채무이거나 반대의무 등 요건이 남은 경우 그 길은 막히며, 수행 주체나 목적물의 존재가 확인되지 않은 경우 미확정으로 남는다. 허용되지 않는 결론은 확정만으로 반대의무 조건까지 충족된 것으로 보는 것이고, 확인 전의 미확정을 곧바로 구제 불능으로 바꾸는 것도 아니다.
6.12이 권의 결론과 남는 물음
앞 절의 결론은 채무 성질에 따른 허용 여부와 이행기간·불이행에 따른 배상 명령을 원래 급부의 실현과 구분한다. 물건의 인도는 물리적 이전을 요구하지만 의사표시는 채무자의 마음속 의사를 법정 효과로 바꾸는 문제다. 두 급부가 한 판결 안에 묶여 있어도 강제의 경로는 갈라진다. 여기서는 그 갈림길에서 확정이 무엇을 하고 반대의무가 무엇을 미루는지 묻는다.
「민사집행법 제263조」는 그 구별을 문언으로 적는다. 제263조 제1항은 채무자가 권리관계의 성립을 인낙한 때에는 그 조서로, 의사의 진술을 명한 판결이 확정된 때에는 그 판결로 권리관계의 성립을 인낙하거나 의사를 진술한 것으로 본다고 정한다. 이 문언이 가리키는 주체는 채무자이고, 행위는 권리관계 성립에 대한 인낙이나 의사이며, 조건은 조서의 작성 또는 판결의 확정이다. 여기서 말하는 확정은 판결의 효력이 확고해지는 시점을 뜻하며, 그 자체로 제3자의 협조나 현장의 물리적 이전을 의미하지는 않는다. 문언은 다만 그 채무자가 법률상 그렇게 한 것으로 보는 효과를 정할 뿐이다. 제263조의 다른 항목이나 집행 방식의 요건까지 함께 풀지는 않는다.
이 문언을 읽으며 제1항과 제2항을 나누어야 하는 이유는 권리변동의 시점이 서로 다르기 때문이다. 제1항의 경우 확정만으로 채무자의 의사 진술이 있은 것으로 보므로, 별도의 협조가 없어도 법정 관계가 움직인다. 반대로 제2항은 반대의무가 이행된 뒤에야 인낙이나 의사를 진술할 것을 요구하는 경우, 제30조와 제32조에 따라 집행문을 내어 준 때에 효력이 생긴다고 적는다. 이 두 단계를 섞으면 확정 시점과 집행문 교부 시점을 같은 날짜로 만들어 버린다. 반대의무가 남아 있는 계약상 요구를 확정만으로 통과시킬 수 없다는 뜻이며, 저자의 적용과 평가는 이 구별 위에서만 선다. 이 절의 결론은 확정의 효과와 반대의무 이행 뒤 집행문의 효과를 따로 세는 것이다.
가장 강한 반론은 등기 등 후속 절차가 남아 실질적 회복이 늦어진다는 점을 겨눈다. 채권자는 판결에서 이겼는데도 관공서의 등기나 제3자의 협조를 기다리는 동안 권리가 완전히 회복되지 않는 것처럼 보인다. 확정만으로 권리변동이 생긴다고 설명하면 그 기다림이 무시되는 것 같다. 하지만 이 반론이 가리키는 손실은 회복의 시점에 관한 것이지, 권리변동의 근거에 관한 것이 아니다. 등기라는 후속 절차의 지연은 남아 있는 불리함으로 적고, 그 불리함 때문에 반대의무 조건을 지워버리지는 않는다.
합성 장면에서 확인되는 사실은 특정한 물건의 인도와 피고 B의 의사표시가 한 판결에 함께 요구되었다는 것뿐이다. 물건의 인도는 급부 성질상 그 이행에 물리적 이전이 요구되고, 의사표시는 법이 채무자의 진술을 대신 보는 경로를 따를 수 있다. 그런데 B의 의사표시 요구가 반대의무 이행과 묶여 있는지, 그 반대의무가 이미 이행되었는지는 장면에 정하지 않았다. 급부 내용·목적물 현황·대체 가능성·집행결정·반대의무 이행·수령 기록이 필요한 이유도 이 때문이다. 목적물이 존재하는지, 누가 이전을 수행할 수 있는지가 확인되지 않으면 그 부분은 미확정으로 남는다.
이 절에서 허용되는 결론은 좁다. 채무자의 서명이 없어도 의사 진술을 명한 판결이 확정되면 그 채무자가 진술한 것으로 본 효과는 생긴다는 것이다. 허용되지 않는 결론은 반대의무 조건이 있는 경우에도 확정만으로 권리변동이 완성된다고 보는 것이다. 그 경우에는 집행문을 내어 준 때에 효력이 생기는 조건이 따로 남아 있고, 그 조건이 갖추어졌는지는 이 절에서 확정하지 않았다. 채무자가 끝내 서명하지 않아도 법이 대신하는 의사의 경로가 있지만, 모든 권리변동이 같은 시점에 완성된다는 뜻은 아니다. 가압류는 채권을 이미 받아낸 것인가?
Statutes referred to
Questions left open
- 간접강제의 부담이 채무자의 이행 능력을 넘으면 어떻게 할 것인가?
- 온라인 게시물처럼 목적물이 변하는 의무는 어떻게 특정할 것인가?
- 집행으로도 회복되지 않는 인격적 손실은 어떻게 남길 것인가?