재심으로 인한 집행정지에 관하여

Abstract

Suspension of execution is stipulated on the Civil Proceedings Act Article 500 and 501, Civil Execution Act Article 16 and Article 34 Clause 2, Article 46, 47, 48, and Article 196 Clause 3, etc. However, to our shame, the Korean Civil Proceedings Act and Civil Execution Act are not coherent and but different in their contents, even when they cite acts from many other countries without contemplation. The difference is caused by not only the obvious distinction in the regulations but also whether a certain regulation is stipulated on or not. Given that incoherence or uncertainty of the regulations have the same fundamental intent of thee suspension of execution, it is required to organize the reasonable process and contents or examine the potential coherence. In this argument, the writer compares and weighs the suspension of execution related to retrials, which is a principle matter, to other suspension related to different matters. To sum it, the suspension of execution related to retrials makes it condition that the person directly concerned must apply by himself. Therefore, the suspension of execution related to retrials cannot be progressed without the application of the person directly concerned, who applies for a retrial under principal of disposition. Second, in case of determining「temporary stop」, the regulation of the suspension of execution related to retrials, it should be regarded as「until the decision of court is made」「until the decision on principle matter is made」, while it is interpreted, dualistically, as「until the final decision is made」in case of being rejected at the relevant level, or「until the final decision is confirmed」in case of the decision is cited. Otherwise, it is desirable to revise the regulations coherently according to the application of Civil Execution Act Article 47. Third, for trials which reject the compulsory suspension of execution because the person doesn't acknowledge dissatisfaction, it is not allowed to appeal for dissatisfaction immediately, but only able to make special appeal to the Supreme Court insisting the relevant reasons. Forth, the change of order cannot be conducted during a suit nor be changed without the person concerned's application, in addition, the ruling of rectification according to a special appeal is not possible. Fifth, if the original suit is withdrawn and doesn't last, the suspension of execution naturally becomes invalid and needs no additional withdrawing procedure. It is enough for the withdrawal if the creditor submits documents that can prove the withdrawal.