가집행선고의 실효와 부활

Abstract

In contrast to the American legal system, only the final and conclusive judgments, which a losing party cannot appeal a decision anymore due to the finality of the system, make such decisions enforceable in the Korean legal system. But most civil law countries like Germany and Korea had established the “Provisional Execution Declaration(PED)” system for more than a century ago which allow to enforce the judgments subject to appeal. Then the PED system had to be well designed to balance conflicting interests between plaintiffs and defendants. Then most civil law countries strike a balance between them through security either from the judgment creditor as a condition of immediate execution or from the judgment debtor as a condition for granting a stay from execution. However, the PED should be granted only if the judgments subject to appeal have a presumption of justification. Then the trial court's PED shall lose its effect unconditionally upon appeal court's judgment altering the merits of the case to the extent of such alteration(Korean Civil Procedure Law art. 215 (1)). Furthermore, the appeal court shall, in a case where it renders a judgment altering the merits of the case, order the plaintiff in such judgment, either upon motion of the defendant or on its own motion, to return what the plaintiff has acquired by the trial court's PED or to compensate the damage of the defendant incurred by it(KCPL art. 215(2)). In this perspective PED is not same with execution by final and conclusive judgment not subject to appeal.