RISS 검색 - 학위논문 상세보기

국문 초록 (Abstract)

제1장 서론
제1절 문제의 제기
계약은 지켜져야 한다(pacta sunt servanda)라는 오랜 법이 있다. 사실,
사인간의 생활·거래관계에 있어서의 급여 의무의 대부분은 임의로 이행되고 있지만
채무자가 임의로 그 의무를 이행하지 않을 경우, 힘에 의한 이행의 촉진을 생각할
수 있다. 근대 법치국가에서는 부당한 실력행사와 정당한 권리행사를 판별하여 전
자의 억제에 노력하고 후자를 지원하고 실현하기 위해 국가는 사인의 자력구제가
허용되는 예외적 경우를 제외하고, 강제집행은 국가(집행기관)가 공증된 사법상의
권리를 국가권력에 의해 강제로 실현시키는 공적 절차이다. 다시 말해, 강제집행
절차는 본질적으로 국가가 사인으로부터 자력구제의 권리를 거론하는 대신 그 대
체조치로서, 사인에게 제공해야 할 ‘공적 서비스’이다. 또한 한 국가의 강제집행 제
도는 양질의 공적 서비스를 채권자에게 제공할 수 없을 때 더 이상 제도의 정당성
이 의심받게 된다.
지금 현재 세계 각국은 금융업의 발전으로 자산의 금융화·증권화가 진행
되고 자산의 보이지 않는 변화가 진행되고 동산 집행이나 부동산 집행을 중심으로
하는 전통적인 강제집행법은 그 실효성을 잃어가고 있으며 기능부전에 빠져 있다.
당연히 우리도 예외가 아니다. 이를 위해 사법상의 권리를 확실하고 신속하게 실현
한다는 강제집행제도의 본래 목적을 지향하여 강제집행제도의 기능을 회복하지 않
으면 안 되기 때문에 새삼 먼저 채권자 보호의 실효성을 높이는 방향으로 재산정
보의 시각화나 간접강제 등을 검토해야 한다.
한편, 가령 채권자 보호의 실효성을 제고하는 제도가 실현되면 거기에 채
무자의 재산이 채권자에게 훤히 보이는 상황이 일어나고, 반대로 채무자에게 가혹
해질 우려가 있으므로 채무자 보호의 방안을 강구할 필요가 생긴다.1) 그러면 강제
- 2 -
집행 절차가 있을 만한 모습을 구상할 수 있다. 채권자 보호와 채무자 보호를 동시
에 고려해야 한다. 이 연구는 이상의 문제에 대한 관심에 기초하여 ‘강제집행 절차
에 있어서 채권자 보호와 채무자 보호’에 관한 비교법적 논의를 재구성하고자 한
다.

번역하기

제1장 서론 제1절 문제의 제기 계약은 지켜져야 한다(pacta sunt servanda)라는 오랜 법이 있다. 사실, 사인간의 생활·거래관계에 있어서의 급여 의무의 대부분은 임의로 이행되고 있지만 채무자�...

목차 (Table of Contents)

제1장 서론······················································· 1
제1절 문제의 제기········································· 1 제2절 연구과제의 설정····································· 3
제2장 강제집행과 채권자 보호··································· 7
제1절 독일법·············································· 7
Ⅰ. 재산공시제도······································· 7

제1장 서론······················································· 1
제1절 문제의 제기········································· 1 제2절 연구과제의 설정····································· 3
제2장 강제집행과 채권자 보호··································· 7
제1절 독일법·············································· 7
Ⅰ. 재산공시제도······································· 7
1. 선서를 대신하는 보증······························· 7
1) 개요········································ 7
2) 청원에 필요한 채무명의의 종류···················· 8
3) 채무자가 공개의무를 지는 사유···················· 9
4) 재산공시의 대상이 되는 재산의 범위··············· 10
2. 구류 또는 형사처벌에 의한 재산공시 의무 이행확보······· 11
3. 선서를 대신하는 보증과 채무자 목록과의 연계··········· 11
1) 채무자 목록에 등재되는 원인····················· 11
2) 등록과 말소·································· 12
3) 작성 및 열람································· 13
4) 채무자 목록에 등재된 경제적 불이익··············· 14
4. 재산공시제도의 합헌성····························· 14
5. 검토··········································· 15
Ⅱ. 제3자 조회제도···································· 16
1. 집행관의 정보취득권······························· 16
1) 집행관에 의한 정보취득권 내용··················· 16
2) 집행관에 의한 정보 취득권 요건·················· 19
3) 집행관에 의한 정보취득 결과의 통지··············· 20
2. 검토··········································· 20 제2절 중국법············································· 23
Ⅰ. 재산공시제도······································ 23
1. 재산신고 명령 실시······························· 25
1) 재산신고 의무자·채권자의 재산신고 정보조회권······· 25
2. 재산신고 명령 위반에 대한 제재······················ 27
1) 과태료······································ 27
[사례 1] ···································· 28
[사례 2] ···································· 29
2) 구류······································· 30
[사례 3] ···································· 30
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[사례 4] ···································· 32
3. 소결··········································· 33
Ⅱ. 제3자 조회제도···································· 34
1. 제도의 법적 근거································· 34
2. 기존의 조회방법·································· 36
3. 조회방법의 온라인화······························· 40
1) 제도의 개요와 연혁··························· 40
2) 온라인 재산조사 흐름························· 42
3) 금융자산에 관한 재산정보······················ 44
(1) 예금··································· 44
(2) 유가증권·선물···························· 47
(3) 보험해지 환불금·························· 48
4) 부동산에 관한 재산정보························ 49
5) 미공개 주식에 관한 재산정보···················· 49
6) 특수동산에 관한 재산정보······················ 51
(1) 어선··································· 51
(2) 운송기기로서의 선박·항공기·자동차············ 51
4. 소결··········································· 51
Ⅲ. 기타 재산탐색 수단································ 53
1. 회계감사의 활용·································· 53
1) 회계감사 개요와 법적 구성····················· 53
2. 절차 흐름······································· 54
1) 회계감사의 시작····························· 54
2) 회계감사의 수행····························· 55
3) 회계감사 종료 및 비용 부담····················· 56
3. 적용사례········································ 57
[사안 1] ······································ 57
[사안 2] ······································ 58
4. 현상금 제도 활용································· 59
5. 소결··········································· 60
Ⅳ. 금전적 간접강제··································· 61
1. 제도의 개설····································· 61
[사례 1] 손해배상으로서의 지연이자가 있는 경우······· 64
[사례 2] 손해배상으로서의 지연이자가 없는 경우······· 65
2. 지연이행이자의 법적 성질··························· 65
1) 법적 성질에 관한 제학설······················· 65
(1) 공법적 제재설··························· 66
(2) 손해배상설····························· 69
- iii -
2) 법적 성질이해가 실무에 미치는 영향·············· 69
3. 지연이행이자 계산방법····························· 73
1) 원본······································ 73
(1) 채무불이행에 빠진 뒤 지연이자·············· 73
(2) 소송비용······························· 74
(3) 현행법 규정····························· 75
2) 이율······································ 76
(1) ‘최고 대출 이율’ 변천사···················· 76
(2) 동기(同期)에 대해························ 78
(3) 현행법 규정····························· 79
3) 기간······································ 80
(1) 시기·································· 80
(2) 종기·································· 81
(3) 현행법 규정····························· 82
4. 지연이행이자 지급명령 발령························· 83
5. 소결··········································· 85
Ⅴ. 비금전적인 간접강제······························· 86
1. 제도의 요약····································· 86
1) 출국금지명령································ 89
2) 고액소비 제한명령···························· 90
3) 신용상실 채무자에 대한 신용징계················· 94
2. 집행법원 등록 절차······························· 94
3. 금융활동 제한··································· 98
1) 대출심사 제한······························· 98
2) 사채 발행 제한······························ 99
3) 상장기업 인수에 관한 제한····················· 99
4) 은행 간 채권시장에서 채권발행에 관한 제한········ 100
4. 금융업에 종사하는 자격 제한······················· 100
1) 증권, 투신 및 선물회사의 설립에 관한 제한········ 100
2) 보험업에 관한 제한·························· 101
3) ‘대출적 보증회사’ 제한························ 102
5. 정부조달, 정부보조금 및 기업우대정책에 있어서의 제한··· 102
1) 정부조달에 관한 제한························· 102
2) 정부 보조금·기업 우대책 제한·················· 103
3) 세관 제한································· 103
4) 행정 인허가에 있어서 불리한 취급··············· 104
6. 국영기업 임원, 공공기관 대표, 공무원 등용에 관한 제한···· 105
7. 기타·········································· 106
8. 소결·········································· 106
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Ⅵ. 강제집행거부죄··································· 108
1. 구성요건······································· 108
1) 전형적인 형태: 자연인 집행채무자가 채무명의에 근거한
강제집행을 벗어날 경우······················· 109
2) 비전형적인 상태: 범죄 주체의 확장·············· 113
3) 비전형적인 상태: 구성요건적 행위의 확장········· 114
2. 실무의 운용···································· 115
1) 어떠한 이유로 집행 대상 재산에 대한 강제 집행을
불능으로 만드는 것·························· 115
[사례 1] 무형재산 이전 및 유형재산 매각 사례····· 116
[사례 2] 유형재산 은닉 사례··················· 117
[사례 3] 유형재산 훼손 사례··················· 117
[사례 4] 무형재산 이전 사례··················· 118
[사례 5] 허위집행 화해 사례··················· 119
2) 과태료 또는 구류 후 채무 불이행················ 120
[사례 6] 구류 뒤 강제집행 거부 사례············ 120
3) 전형적 사례가 보여주는 경향··················· 121
3. 소결·········································· 121
Ⅶ. 채권자 보호 실효성의 통계적 평가··················· 124
1. 배경: 채무명의 전액 회수에 대한 집행기관의 책무······· 124
2. 통계자료와 분석································· 127
1) 사건수···································· 127
2) 기제율·채권 회수율·························· 128
(1) 기제율································ 129
(2) 채권 회수율···························· 130
제3장 강제집행절차에서 채무자 보호··························· 133
제1절 독일법············································ 133
Ⅰ. 압류금지재산····································· 133
1. 압류금지 재산제도의 공익적 성격··················· 134
2. 노동수입 압류 금지······························ 136
1) 산정 단계 1: 노동수입 확정···················· 137
2) 산정 단계 2: 노동수입에서 순수입 산출. ·········· 137
(1) 절대압류금지 수입(제850a조) ··············· 138
(2) 세금 및 자기부담분 사회보험료·············· 139
3) 산정 단계 3: 부양가족의 수 확정················ 139
4) 산정 단계 4: ZPO 제850c조의 부표에 부합········ 140
5) 소결····································· 144
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3. 예금채권의 압류금지····························· 144
1) 압류보호계좌의 법적 효과···················· 145
(1) 원재료의 무제한 특성···················· 145
(2) 압류 불인용액의 산정···················· 146
(3) 압류 불인용액 사용기간·················· 147
2) 압류방지 보호계좌의 개설···················· 148
(1) 사전 성질 변환························· 149
(2) 압류명령 발령 후 사후 전환··············· 151
3) ‘압류금지 계좌’의 특례······················· 151
4) 소결····································· 152
4. 소결········································· 152
Ⅱ. 화해적 집행······································ 153
1. 개요: 강제집행 절차의 효율화의 수단으로 화해적 집행···· 154
1) 2013년 개정법 시행 전······················· 155
2) 개정법: 2013 개정법 시행 후··················· 158
2. 과제 1 : 집행관의 인센티브와 권한의 부족············· 162
1) 인센티브 부족······························ 162
2) 집행관의 권한 부족·························· 163
3. 과제 2 : 채무자의 재산상태 변동의 위험·············· 165
1) 재산압류의 병행 실시························· 165
2) 담보설정·································· 166
4. 소결·········································· 167 제2절 중국법············································ 169
Ⅰ. 압류금지 재산 등································· 169
1. 압류금지 동산··································· 170
1) 채무자 및 그 피부양자의 생활에 필수적인 부분····· 170
2) 기타 압류금지 동산·························· 171
2. 압류금지 채권··································· 172
3. 경매금지 부동산································· 173
4. 소결·········································· 176
Ⅱ. 화해적 집행······································ 176
1. 집행화해의 운용································· 177
1) 개요····································· 177
2) 집행화해의 형태····························· 179
(1) 현재 자금 부족형······················· 179
[사례 1] 유예할부······················ 179
[사례 2] 일부원금 부채·이자 면제·········· 180
[사례 3] 환가의 유예···················· 181
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(2) 사실상 중재형························· 181
[사례 4] 급여채무 재조정················ 181
3) 실무의 이용상황····························· 183
2. 강제집행 절차에서의 화해운용의 허용성··············· 185
1) 제도 전체의 관점에서 당사자 자치이념의 침투······ 185
2) 제도 전체의 관점에서 당사자의 이해조정의 필요성··· 187
3) 채권자의 관점······························ 189
4) 채무자의 관점······························ 190
5) 여론: 집행화해 기능 확대론 (입법론적 관점) ······· 192
3. 소 결········································· 193
제4장 외국 강제집행제도의 우리 법제에의 시사············ 195
제1절 재산공개 제도······································· 195
Ⅰ. 기존의 논의······································ 195
1. 2003년 개정의 논의······························ 195
1) 명령위반에 대한 제재수단····················· 196
2) 재산공개 절차를 이용할 수 있는 채무명의 범위····· 197
3) 재산공개 제도의 보충성(불주효 요구사항) ········· 198
4) 재산공개의 범위····························· 199
2. 집행법제연구회의 활동···························· 200
Ⅱ. 새로운 입법 운동································· 204
Ⅲ. 검토: 재산공개 절차의 어려움과 합리화 수단의 당부···· 207
1. 허위공시에 대응할 수단의 부재······················ 207
2. 채무자의 무거운 개시부담·························· 210 제2절 제3자 조회제도······································ 215
Ⅰ. 기존의 논의······································ 215
1. 2003년 개정의 논의······························ 215
1) 고용주와 금융기관 등의 민간기관이 보유하는 정보··· 215
2) 세무당국 등의 공적 기관······················ 216
2. 집행법제연구회의 활동···························· 217
Ⅱ. 새로운 입법 운동································· 219
Ⅲ. 검토: 제3자 조회 IT 시스템의 구축과 과제············ 224
1. 제3자 조회제도의 세 가지 모델····················· 224
2. 제3자 조회 IT 시스템의 과제······················· 227
3. 제3자 조회 IT 시스템의 이론적 논의 가능성············ 229 제3절 간접강제············································ 231
Ⅰ. 현재에 이르기까지의 입법 상황······················ 231
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1. 2003년 개정 이전································ 231
2. 2003년 법 개정································· 233
3. 2004년 개정···································· 235
Ⅱ. 간접강제의 성질에 관한 사고방식의 전환·············· 236
1. 청구권 실현의 사고······························ 237
2. 청구권 실현에서부터 재판의 집행으로················· 239
Ⅲ. 간접강제의 발령과 그 내용························· 243
1. 간접강제 발령요건······························· 243
2. 간접강제의 내용으로서 금전적인 간접강제·············· 245
3. 간접강제의 내용으로서 비금전적 간접강제·············· 248 제4절 압류금지 재산······································· 251
Ⅰ. 문제의 소재······································ 251
1. 현재 : 제도의 취지와 실무운용의 차이················ 251
2. 성립 : 현행 틀의 입법이유························· 255
1) 입법자의 채무자 보호에 대한 문제의식············ 255
2) 현행 제도의 도입 이유························ 256
3. 대책 : 제도의 취지에 회귀························· 259
Ⅱ. 세대 지출을 구성하는 일반적인 요소················· 260
1. 세대 지출의 기초금액····························· 260
2. 세대 지출의 가산 요소···························· 261
1) 채무자의 부양가족 수························· 262
2) 채무자 가구 거주지역························· 262
3) 채무자 또는 그 부양가족의 심각한 질병··········· 263
Ⅲ. 압류명령 발령의 신속성과의 조화···················· 263
1. 비교법········································ 263
1) 독일법···································· 263
2) 중국법···································· 264
2. 우리 법에 시사 : 급여채권························· 264
3. 우리 법에 시사 : 급여채권의 특례로서 예금채권········· 268 제5절 화해적 집행········································· 275
Ⅰ. 일본법에 있어서 기존의 논의······················· 275
1. 유예 또는 분할변제의 시점························· 275
1) 구법시대의 실무에서의 ‘동산집행의 간접강제 운용’ ··· 275
2) 독일법, 프랑스법의 유예 또는 분할변제의 논의····· 278
2. 집행과정에서 화해적인 계기의 관점·················· 279
1) 2000년 5월 일본 법사회학회에서 논의············ 280
2) 2000년의 문제제기 이후······················ 284
3. 강제집행 절차에서의 파산처리의 관점················· 286
Ⅱ. 화해적인 집행의 세 가지 유형······················· 287
1. 기본형식 : 유예 · 분할상환형······················· 287
2. 특별형 1 : 사실상 중재형·························· 289
3. 특별형 2 : 사실상 파산처리형······················· 291 제5장 결론: 공공 서비스로서의 강제집행······················· 293
참고문헌·························································· 299
<Abstract>······················································· 309
<표 차례>
표 1 ····························································· 83
표 2 ···························································· 122