재산명시제도의 재조명

Abstract

The property specification is the system that makes a creditor be able to find out the status of debtor’s property accurately, and it has been taking effect in Korean civil procedure more than 20 years. But this system does not seem to be used so much. Perhaps the most important reason seems to be lack of publicity. Other reasons for this may be the followings : firstly, the sort of executive title to commence a specification of debtor’s property was limited widely, secondly, sanctions for violation of specification order was not sufficient, thirdly, the active inquiry system about debtor’s property was not developed, fourthly, the punitive measures against debtors who submitted a false property catalog was not effective. Expectations for activation of the property specification system was not materialized, even through the enactment of civil execution act in 2002, and the complement to property inquiry system in 2005. Still the utilization of this system is poor, and it could mean improvements of this system should be requested necessarily. In this paper, I propose some improvements for the activation of the property specification system. First, I think indirect compulsory performance methods should be enhanced through all property specification system. It means that the system should be transferred from the present system which is based on debtor’s positive activity to the powerful method of psychological pressure. One of the specific methods of this is like as followings. When a court ordered property specification to the debtor, the court impose some guarantee of him/her, but if causes of detention or the submission of a false property catalog is confirmed, it will be needed to confiscate the guarantee from the debtor. Second, when a debtor violates detention or penal provisions, there will be needed improvements that register the debtor in the defaulters' list by the Rechtspfleger’s official authority without creditor’s request for entry. In a view of a different standpoint, in the current act, the right of request for a reproduction is not restricted. But this way would be inappropriate to prevent abuse the defaulters' list and to protect the personal information of the debtors. Therefore, I think the restriction that only a person who will vindicate the transaction with debtor permitted to request a reproduction will be needed. Third, the improvements for the inquiry about property is needed. As the Rechtspfleger’s official authority for listing the debtor on the defaulters’ list is needed, the reason of violation of detention or penal provisions is obvious fact to the court, so in this case, the Rechtspfleger should be permitted to inquire without waiting for the request of the creditor. And a new system for the creditor to have a permission to inquire about the property without request will be needed. Fourth, improvements for detention and penal system will be needed also. I think penal provisions will be more strengthened than current act. When it was vindicated that a debtor submitted a false catalog, it would be needed to let him/her be detained rather than punishment by a fine.