The Decision at issue concluded that, in the case of execution proceedings with respect to the movable property subject to the security right, the secured creditor is a creditor who does not need to demand distribution. The Decision at issue stated th...
The Decision at issue concluded that, in the case of execution proceedings with respect to the movable property subject to the security right, the secured creditor is a creditor who does not need to demand distribution. The Decision at issue stated that this conclusion could be drawn by analogically applying Article 148, Subparagraph 4 of the Civil Execution Act. This conclusion itself is desirable, but in this case, teleological reduction should have been preceded by analogy of Article 148, Subparagraph 4 of the Civil Execution Act.
On the other hand, it is necessary to consider from the viewpoint that the solution of the problem through the analogy may cause a conflict in relation to legal stability. When there is a gap in the legal discipline in a particular case, it is not easy for the general public to determine whether the gap is a lacunae in law. Even if the general public has the ability to accurately judge the lacunae in law and the necessity of resolving disputes through the analogy, there is no official way to confirm the legitimacy of such a judgment until such a judgment is confirmed through a court ruling. By contrast, although a certain practice has been formed based on the judgment that a certain gap in a specific regulation is due to the will of the legislator, the court concludes against the practice on the premise that the absence of such rules constitutes a lacunae in law, and if such court rulings are repeated, no matter how legally legitimate conclusions are drawn, the trust in the legal system will inevitably be undermined.
In order to minimize these problems, it is necessary to carefully enact the law from the time of legislation so that there is no gap in regulation due to a lacunae in law. However, it is not easy to enact a perfect law without lacunae. Therefore, in addition to efforts for delicate legislation, efforts to promptly supplement the lacunae in law should not be neglected. Although the lacunae in law related to the demand for distribution of the secured creditor in movable assets was remedied through the Decision at issue, the law that created the lacunae still remains without any change in appearance. Therefore, in order to ultimately resolve this problem, a clear legislation that reflects the Decision at issue is needed.