판결절차 간접강제에 대한 몇 가지 검토

Abstract

Indirect compulsory performance is a method used by a court to enforce irreplaceable acts or omissions. The Supreme Court has allowed indirect compulsory performance at the time of the judgment on the merits (referred to as “Indirect Compulsory Per- formance” herein) since 1996. This paper focuses on some legal issues that may arise in trials involving Indirect Compulsory Performance. First, the appeal process for Indirect Compulsory Performance should follow the same procedures as those for judgments on the merits. This ensures that Indirect Compulsory Performance can be executed either concurrently with or subsequent to the judgment on the merits, while adhering to the trial procedure and mandate form. Second, a court should declare provisional execution for Indirect Compulsory Performance if such execution is pronounced with the judgment on the merits. Conversely, this declaration should be avoided when no provisional execution accompanies the judgment on the merits. This ensures concurrent execution with the judgment on the merits, thereby enhancing the overall effectiveness of the judicial decision. Lastly, the addition of Indirect Compulsory Performance during the appellate trial should not be allowed, as it could breach the court’s jurisdiction and potentially disrupt the balance between creditors and debtors.