간접강제 -관련된 몇 가지 쟁점을 중심으로-

Abstract

In Korea, enforcement of specific performance is understood to be allowed in general as the effects of the obligation itself. There are some kinds of methods to coerce the obligator to specific performance, one of which is inciting voluntary execution by endowing monetary burden to obligator if he would not comply with his obligation. We call it here Monetary Decree, which is much like ‘astreinte’ of France civil execution law, and is based on the similar concepts of compelling specific performance with ‘civil contempt’ in American Jurisprudence. Here we contemplate some kind of questions which arise with contradictory understanding of the character of Monetary Decree for coercing specific performance in Korea. The first issue is whether Monetary Decree is supplementary of the other methods of civil execution, such as eviction or attachment of the properties of debtors. Traditionally authorities have said that compelling voluntary execution by Monetary Decree is the last method to execute obligation, reliable only the other methods prove to be improper. Today a plausible theory that Monetary Decree can be simultaneously ordered with the other methods of execution is getting attentions. The second issue is what’s the character of Monetary Decree. It’s obvious that the decreed money is not indemnity of delaying of specfic performance, but not obvious what it should be and how to amount the sum of it. Here arise the reason why we should study France regime of ‘astreint’, which deems to give us the key to solve the question. The third issue is whether Monetary Decree can be ordered in the same procedure of pronouncing judgement. Because Monetary Decree is a kind of writ of execution, theoretically the procedure to issue the Decree can only begin after the end of procedure of producing judgement. But Korean Supreme Court holds, standing in practical position rather than be obstinate to theoretical attitude, that it is legal to produce Monetary Decree simultaneously with judgement on the merits of the case.