임시의 지위를 정하기 위한 가처분의 법체계적 지위

Abstract

In Korea, the preservative measures, such as Provisional Seizure, Provisional Dispositions with Regard to the Objects of Dispute and Provisional Disposition to fix Temporary Position, are provided in article 276 or below of the Civil Execution Act. Designating the preservative measures as part of the executions law was a tradition from German law, and so did Japan until recently. But, I think, it is not right to regulate the Provisional Disposition to fix Temporary Position, which aims to preserve rights regardless of forced execution, with other preservative measures as a part of forced execution. This attitude of the current law is causing inappropriate rule for the provisional dispositions law. Under this consideration for the Provisional Disposition to fix temporary position, I would like several suggestions to improve the Provisional Dispositions system. First, the law on preservative measures should be separated from the Civil Execution Act and established as a separate law. Second, the new preservative measures act should be provided centering on the provisional disposition to fix temporary position rather than the other preservative measures. Specifically, it is proposed to introduce temporary restraining order that is effective only for a short period of time until the trial of the provisional dispositions case, if necessary. The provisional dispositions proceedings are proposed as follow-up procedures of proceedings for the temporary restraining orders and the proceedings on the merits are as follow-up of the provisional dispositions proceedings. Third, it is suggested to improve the procedures for trial and appeal and the execution of the provisional dispositions. In Addition and the last, it is suggested that the new act should include provisions on conflict of dispositions, damages due to an provisional disposition and individual regulations by the type of measures.