Earticle

초록

영어

It can be seen that the ideal of the civil action forms the ideal of civil affairs execution. Moreover it is regulated that civil affairs execution law article 23 term 1 “excluding the circumstances where there is a special regulation to this law, it applies correspondingly the regulations of civil
action law regarding the procedures of civil affairs execution and preservative measure.” so, different to the opinion of looking at the ideal of civil action as the ideal of civil affairs execution, it seems as though there can be no different opinion. Therefore it is sometimes thought that legalistic character and ideal of civil affairs execution procedure don't need to be particularly
understood.
But even if the principle of civil action and civil affairs execution is identical, civil action procedure is ideally solving the dispute factum via mentality that has been through opinion proof(Verhandlungsmaxime) of the person concerned. Different to this the civil affairs execution systematically actualizes the authority of ideal acknowledged executive power original state,
or it is a procedure that forcefully realizes the authority based on conversion right that is immanent in mortgage rights such as mortgage, right of pledge, the lease of a house on a deposit basis rights, and lien. Furthermore it is a procedure where human execution possible, so it is hard to see that the meaning of that principle is definitely identical.
Therefore an examination is necessary to see whether legalistic character in a civil action is different to legalistic character of civil affairs execution procedure, whether regulations about ideal of Code of Civil Procedure article 1 are applied correspondingly in civil affairs execution and article 1, whether or not that meaning is identical if it is applied, and because there is the
problem of whether the ideal different to civil action is needed or not.
It is because the ideal of civil affairs execution is needed as the analysis ideal of civil affairs execution law, and as the appropriate standard of legislation(opening of court) direction according to the changes of society's economic important matters and sense of values that were prerequisite during the legislation. In this essay we looked at whether public good is needed as
the ideal of civil affairs execution.
There is no reason to object to the opinion 'civil action law article 1 term 1 is applied correspondingly', because civil affairs execution law does not keep the regulation about the ideal of civil affairs execution procedures. But rapidity, economics, propriety and equity according to civil action, does not have the same meaning with the legalistic character and civil affairs execution which objective is different. Also the existence of ideal besides the ones regulated in civil affairs execution law, that are deduced according to the various regulations that have been regulated in civil affairs execution law can not be denied.
The procedural prowl in civil affairs execution is something that is arranged at the front in the ideal(especially propriety and equity) of civil affairs execution, but preferably in civil affairs execution procedure if there is no prowling, it brings execution incapable situation due to the debtor, so not only will it be against propriety and equity but it will bring the result which makes it harder for idea achievement of economy and rapidity.
Also it can be said that the civil action procedure actually does not have public beneficial and third person-wise relative importance, and there are very little circumstances where it has any effects. On the contrary civil affairs execution procedure has more gain and loss related people than civil action, and it is a procedure of substantially realizing creditor's authority. So that
is how the gain and loss relation between creditors, between creditor and debtor, between creditor and other understanding related people, between creditor and third debtor, and between vendee and third person, sharply confronts. Therefore there is the need for civil affairs execution procedure to regard the idea of public benefit as important.
In conclusion the principle in civil affairs execution requires rapidity, economics, propriety and equity due to correspondingly applied civil action law, other than these it is seen that the ideal of prowl and public benefit is required. These ideal supplement and overlap with each other, and sometimes they are inconsistent or collide. However public benefit as the civil affairs execution ideal is the only notion that does not conflict with other ideal.
Civil affairs execution is the procedure that forcefully realizes authority as executive power original state that has been ideally approved in things such as civil action, in the aim of creditor's profit, it is caused by debtor's unfaithfulness so it has to plan creditor's superiority and creditor's maximum satisfaction more than anything else. But bringing unexpected loss to third person or other understanding related person, furthermore being to harsh to the debtor, In the end it should not be a result opposing against public benefit.

목차

Ⅰ. 머릿글
 Ⅱ. 민사집행절차의 법적 성질
  1. 학설의 대립
  2. 소송사건설
  3. 비송사건설
  4. 소결
 Ⅲ. 민사집행의 이상
  1. 의의
  2. 신속과 밀행
  3. 경제와 적정
  4. 공평(평등)
 Ⅳ. 민사집행과 公益
  1. 서
  2. 동일채권자보호
  3. 채무자 보호
  4. 이해관계인과 제3자의 보호
  5. 국가(사회)의 공공질서 보호
 Ⅴ. 결어
 참고문헌
 

키워드

저자

• 최안식 [ Choi, An-Sik | 법학박사, 원광대학교법학연구소 연구원, 원광대․전주대 강사, 법무부 법교육강사 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  원광법학 [Journal of Law research]

• 간기

  계간

• pISSN

  1598-429X

• eISSN

  2508-4526

• 수록기간

  1962~2025

• 등재여부

  KCI 등재

• 십진분류

  KDC 360 DDC 340