금전채권 집행절차에서 공탁에 관한 연구

Abstract

Abstract The purpose of this paper is to study the Deposit of Execution, which shall occur an execution procedures of monetary claim under the current Civil Execution Act. And this paper promoted to the scope of optimum and the systematical approach, against the Deposit of Execution by classifying into Deposit of Garnishee, Deposit of Creditor, Deposit of Debtor according to the depositor: Provided, That Deposit of Debtor examined in the relevant passage. This paper examined against Deposit of Concurrence as in particular cases of the Deposit of Execution, and mentioned against the Deposit for Performance in the relevant passage, because the Deposit of Execution can be in particular cases of the Deposit for Performance. The Civil Execution Act enforced around 10 years, and this paper sets forth a program of improvement against problems which occurred in an irrational regulation of the Deposit of Execution and the Executive, under the execution procedures of monetary claim in the meanwhile, it is as follows: First, the Deposit of Execution which is defined in the Article 248 of the Civil Execution Act: the Deposit of Garnishee is concerned. Above all, it was legalized that established him/her to a deposit of execution in case of a single seizure, the civil execution act and the civil execution municipal rule shall amend in order to manage a summary distribution procedure to ground on laws and regulations: Provided, That it is desirable that he/she enables to a deposit for performance in case of a single provisional seizure. And In case whether the execution creditor obtained Assignment Order to the monetary claim, it is reasonable to not a deposit of execution but a deposit of concurrence in case of there were execution creditors who were later. In the second place, our Civil Execution Act has an incomplete provision about an obligatory deposit in the Articles 248 (2) and (3) of the Civil Execution Act. Therefore, it is desirable to amend the provision in Articles 248 (2) and (3) of the Civil Execution Act in response to the obligatory deposit completely. If Articles 248 (2) and (3) of the Civil Execution Act is amended as suggested, the provision in Article 236 (2) of the Civil Execution Act, which requires a concurrent creditor to report any collection from the garnishee to the court, will no longer be necessary. Above this, with reference to the deposit of garnishee, it must be improved as follows: a problem which is regular to a claim against a cost of deposit; a problem which is regular to a difference against a court of deposit and a court of report on the grounds; a problem which is regular to a provision regarding the report on the grounds of deposit which shall be by a person interested, with reference to the report on the grounds of deposit. Lastly, it shall be amended the end of dividend claim to a garnishee who has made a deposit, and it shall be made clear which is regular to the time of occurrence on an effect which blocks a join of distribution in the case of attachment or provisional attachment. Second, the Deposit of Execution which is defined in the Article 236 of the Civil Execution Act, that is the deposit of the execution creditor who is acquired a collection order is concerned. Above all, in a de lege ferenda, the system of the order of collection should be abolished, and it is granted to an order of seizure a competence of collection. And when a creditor collected a claim, he/she treated of which accepted a payment, within the limit of in receipt the amount of claims and the execution costs. By doing this, the suit for collection shall be elastic. In the second place, the Article 236 (2) of the Civil Execution Act should be abolished alongside an amendment of Articles 248 (2) and (3) of the Civil Execution Act. And a problem which is introduced to a time of occurrence on an effect which blocks a join of distribution in the suit for collection and a problem which is introduced to a system of judgment of deposit must be settled practically. Third, the Deposit of Concurrence is concerned as in particular cases of the Deposit of Execution. Above all, in the Deposit of Concurrence, the Deposit of Execution is to be a conditional deposit, therefore this paper organized theoretically about an effectiveness of a conditional deposit. And this paper organized cases widely about an obligee cannot be ascertained relatively causing of the Deposit for Performance among deposit causing of the Deposit for Performance which is become the cause of the deposit of concurrence together with the Deposit of Execution, and suggested a general requirement. In the second place, this paper examined problems: the stop of proceedings actually; the proceedings of mixture solution for progress of proceedings; the scope of the parties and the proof method; the way for the prevention becoming long-term unsolved affairs. And in case of the distribution procedure progressed on and after a Deposit of Concurrence before a mixture solution, this paper examined a stance of precedent on the Demurrer against Distribution. Lastly, it is important to emphasize a duty of care of a depositor, practically the Deposit of Concurrence often appears, and it should be considered complexity of a legal relation and level of difficulty a deposit. And the improvement of system should have to be made toward further enhance the strength of a role of a court as guardian, in considering of a non-expert of garnishee who is engaged in a legal relation which occurs individually.

Keywords: deposit of execution, rightful deposit, obligatory deposit, demand for a distribution, report on the grounds, completion period of demand for distribution, order for collection, suit for collection, deposit to obtain release from provisional seizure, deposit of concurrence