미국의 임시제한명령(Temporary Restraining Order) 제도와 韓·中양국에서의 도입에 대한 고찰

Abstract

In order to avoid significant damages to the creditors in a contested rights relationship, South Korea applies the “Provisional Disposition to Fix Temporary Status” system, while United States applies the “Preliminary Injunction Order(PI)” and “Temporary Restraining Order(TRO)”. In China, “Advance Enforcement” system and “Act Preservation” system are playing the similar role. Although they are provisional dispositions, they require careful handling because they could settle disputes with acting on the right relation before the case on the merits. Therefore by the Civil Execution Act of South Korea, in the judgment on the provisional disposition to determine temporary status, the date of pleadings or the date of examinations joinable by the debtor shall be opened. It means that in this kind of provisional disposition, should on notice to the adverse party. In the U.S., PI is similar to the Korean “Provisional Disposition to Fix Temporary Status” system, and it requests that the court may issue a PI only on notice to the adverse party. But in the case of giving notice will lead the purpose of provisional disposition is not attainable, The Act of South Korea applies a proviso that allows issuing without notice. In comparison, in the U.S., TRO can be rendered without notice, and it seems like the proviso applied in the Act of South Korea. However, they are quite different. The proviso applied in the Korean Act is just a kind of special process of provisional disposition to determine status, so even though using the proviso, it’s still a type of provisional disposition to determine status. In opposite, in the U.S., TRO is used to protect a moving party who has a serious financial hardship to provide remedy from the court which is faster than PI. It’s like an emergency oil tank in the car for long distance driving, which available before getting to the gas station(PI). As PI being a gas station and TRO being a small oil tank, they are individual systems. It means that the Korean civil justice system only has gas stations but don’t have small oil tanks which could provide the remedy to a moving party who has a serious financial hardship. Such lack of protection leads the discussion on adopting TRO to the Korean system. By contrast, Chinese Civil Process Law provides the remedy to a moving party who has a serious financial hardship before the case on merits through “Advance Enforcement” system. However, it is not a preservative(or a provisional disposition) method, but merely a special execution method. And this system is being criticized because of doing the execution before the sentence violates the basic logic of law. In addition, in China, although the Act Preservation” system is playing a similar role with the Korean “Provisional Disposition to Fix Temporary Status” system, it’s usually ordered without notice. The worse is, judges can ex officio order such even without a party’s request. Therefore, it is worth discussing the introduction of the TRO system in China. Futhermore, there are issues that South Korea and China to resolve on how to introduce TRO in their countries. In South Korea, the most problematic thing is the moving party’s system abusing, while in China the most one is the court’s power abusing. And we aim to find to a solution in the social credit system that is currently being built in China.