假執行宣告의 失效와 復活

In contrast to the American legal system, only the final and conclusive judg-ments, 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 pre-sumption of justification. Then the trial court s PED shall lose its effect uncondi-tionally 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 ap-peal 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 con-clusive judgment not subject to appeal. Recently, However, function of the PED has been shifted on controlling ex-cessive appeals and to promote for the first instanceʼs court centered proceeding instead of balancing between parties. As a result of it, for example, trial court mandatorily shall pronounce the PED on a claim for property rights on its own motion with or without any security unless there is a justifiable reason(KCPL art. 213 (1)). And according to the KCPL art. 213 (2) the court may exempted the PED from the defendant, ex officio or at the request of him, but he should post a security equal to the total amount of the judgment. But exemption case is few in practices. Moreover, whenever Korean trial courts pronounce the PED, they usually don t require any security from the plaintiff. On the other hand, they al-ways require full security equal to the total amount of the judgment from defend-ant who filed a motion to suspend the PED. In this perspective the Korean PED system critically produces out of balance between plaintiff and defendant on the basis of either statute or legal practices. Imposing unfair heavy burden to defend-ant who loses at the trial court with respect to the PED practice in Korea is much harsher than any other civil law countries such as Germany and Japan. Above all things, it would be the extreme case representing unfair treatment to the parties for the Korean Supreme Court(KSC) to approve the revival of the at once invalidated PED of the first trial court. In a case where judgment of the first trial was altered by the appellate court, the PED of the first trial also should be invalidated unconditionally. However, the KSC recognizes the conditional invalid-ation of the first instanceʼs PED, and then at once invalidated PED by the appel-late court s judgement could be revived by prospective KSCʼs judgment quashing the judgment of appellate court and remanding the case to the appellate court.