장래 채권의 전부명령에 관한 일고찰

Abstract

The non-confirmed claim is that the value of the claim cannot be confirmed in the present and can be confirmed in the future. The non-confirmed claim yields various difficult problems in execution because the value of it is likely to change continuously until it is fixed. In this study, I deal with the characteristics and peculiarities of the assignment order on the non-confirmed claim in comparison to the confirmed claim. In addition, I give an explanation of the requirement and effect of the assignment order on the non-confirmed claim. I try to enhance the comprehensibility of this study through illustrating the case. There is controversy whether the non-confirmed claim can be a object of the assignment order. However, I believe that it can be a object because the civil execution act does not provide the face value as an requirement of the valid assignment order and it is desirable to heighten the efficiency of the assignment order. It is very important to set up a time-standard to judge the concurrence of the seizure since when it happens, the assignment order is to be nullified. I assert that we should judge the concurrence of the seizure at a point of time not to confirm the value of the non-confirmed claim, but to deliver the assignment order to a garnishee. As a result of my assertion, the distribution problem among creditors may happens. In that case, the court of execution should distribute dividends in proportion to the credit amount of each creditor. When there are several assignment orders on the earnings credit, the first assignment order that is followed by other assignment orders is valid(also, other assignment orders are valid). The reason is that there is no concurrence of the seizure. On the other hand, the assignment order after the valid seizure order on the earnings credit is to be nullified due to the concurrence of the seizure. Finally, the time and extent of the extinction of the execution credit is the question under debate. I insist that at the time the assignment order is final and conclusive, the execution credit is to extinct and that the effect of the extinction of the execution credit is to retroact to the time of delivering the assignment order to a garnishee. I believe that the execution credit does not extinguish to the extent that the value of the non-confirmed claim proves to be reduced and hence the execution creditor is able to implement a compulsory execution against the debtor again.