강제집행 후 집행판결의 대상인 외국 재판이 취소된 경우의 법적 취급

Under Korean Law of Civil Execution, creditors are allowed to enforce the compulsory execution by obtaining a Korean court s permission called judgment of execution even with a final decision from a foreign court, and the forced execution has the same effect as the Korean court did. Accordingly, the effect of compulsory execution is final and will not be changed in principal even if the situation changes later. However, foreign legislation based on compulsory execution is not always same from that of Korea, there are some cases the “final” decision may be canceled or changed after compulsory execution. There is no provision in Korean law regarding that kind of cases. Some might say that the issue of compulsory execution is not affected because it is separate from the substantive law or the legislation of the country that actually held the trial, while the other might say that the legal relationship should be settled between the parties accordingly because the foreign ruling on which the compulsory execution is based has been revoked. Recently, the Supreme Court of Korea ruled on this kind of issue that the power of judgment of execution for compulsory execution is irrelevant to the legal relations of rights between the parties, so if a foreign ruling is canceled, the legal relations of rights between the parties should be restored accordingly. This ruling can be said to be no problem, given the procedural legal theory surrounding the judgment of execution. However, it is not sufficient to explain the legal relationship to resolve the issue simply with the judgment power of the executive judgment without approaching the issue of the res judicata of the approval of a foreign judgment established between the parties.