가사소송법상 사전적 이행확보제도

The Provisional Remedies in the Family Litigation Act

In family cases, it generally takes long time for a judgment to be confirmed or for family mediation to take effect. The Family Litigation Act thus provides the preliminary order, provisional attachment, and provisional injunction systems in family litigation, family non-litigation, and family mediation to preserve the satisfaction of a latent judgment(or mediation). They are collectively called the Provisional Remedies. There are overlapping parts between the preliminary order systems and the provisional attachment and injunction system, but there are essential differences between them in requirements for application and hearing, which raises a need to review them according to the nature of a family case. This study set out to examine the unique nature and procedure of preliminary order, provisional attachment and injunction under the Family Litigation Act, and the major content of the revised bill by including the content of the revised bill as well as the current Act in its scope. The current Act has an issue of no effectiveness since preliminary order had no ability to be enforced even in the case of a strong need for emergency order. The revised bill adds a provision to grant power of execution to preliminary order. This issue must be solved fundamentally by a fast legislative measure. Caution should be taken not to postpone the issue of preliminary order as the future hearing practice of preliminary order places importance on the probability of citing the original bill(preserved right) for the reason of preliminary order's power of execution. The hearing of preliminary order should focus on the need for preservation. Both the current Act and its revised bill have no substantive enactment to allow a appeal against a decision to dismiss or reject a preliminary order application. The revised bill needs to be revised to include substantive enactment to allow the applicant to file an immediate appeal.