민사집행절차상 자동차인도명령집행에 있어서의 문제점

Abstract

Enforcement of car that is registered in the vehicle registration ledger isdefined to follow the provisions of the enforcement related to real estate ifthere is no special provision in the Civil Execution Law. However,automobiles, unlike property, in that the execution target for the essentialcharacteristics of mobility, many points must be handling different with thereal estate executive. In particular, the execution of an automobile, it is animportant challenge to secure the occupancy of an automobile as an object. In other words, unlike enforcement against real estate, it is difficult to runa smooth car enforcement only registered in foreclosure decisions andregistry of motor vehicles. Therefore, in the progress of the car ofenforcement proceedings, in addition to the auction start decision andforeclosures registers on vehicle registration book, ordered to deliver the carto the execution officer against the debtor. In order to increase the receivables feasibility of creditors, decision of aninjunction to halt transfer of possession for the car deprive the occupationof the debtor and store the car until the deadline of the main executionunder the schuldtitel by the enforcement officer, deliver the car at the sametime along with the decision of an injunction to halt transfer of possessionfor the car. Execution court, in the case where the start order for acompulsory auction of vehicles, entrust with registration of foreclosure onthe vehicle registration ledger and take the necessary measures for thetransfer of possession of the bailiff of the car. As for the command type of delivery of cars were recognized under law, it can de divided as (1) When the order of delivery of cars issued todebtor under the given requirements before application for compulsoryauction (2) Order to debtor to deliver the car to the enforcement officerwhen start the order for a compulsory auction (3) At the time of seizure ofeffect occurs after effect of foreclosure occurs, if a third party occupy thecar that has been occupied by debtor, and issue the order of delivery ofcars. Enforcement of the order of delivery of car before the compulsoryauction application is enacted that it is possible to order to deliver belongenforcement officer of the "district court having jurisdiction over the placewhere there is the car." based on the provisions of the regulations Article113 Clause 1. In spite of the above provisions, in the conventional practicefield regardless of the application for auction or the type of application forcompulsory auction or disposal, after receiving the pre-delivery order underthe above provisions, any national court to delegate enforcementeverywhere without restrictions on the bailiff and the bailiff also accept andthe car delivery execution was performed in the area where the car. In thisway, it is not reasonable to prevent the use of the system on the groundsthat the method as practices on a conventional practice do not fit inpiecemeal provisions of the rules only. In car auction to carry out a security right to the purpose of car, it isstipulated that after apply almost entire of the provisions related toautomobile compulsory auction, specific provisions for auction as a result ofthe execution of the security interest has been defined in a manner thatshall apply some part of the car random auction relevant provisions relatedto real estate and ship. These legislative system can be assumed asreflecting the peculiarities of a motor vehicle enforcement. The order of delivery of cars that issued at the same time with anydecision on the commencement of auction car can be issued even for thethird party who have no legal right of possession to resist to the originalmortgage lender. In this case, receive a separate order on the third partyand execute delivery would be conform to standards of law, it is resonable to consider that by the order of delivery of cars of the debtor, the order ofdelivery of cars can execute about the third party.