집행비용에 관한 분석적 검토 – 대법원 2023. 9. 1.자 2022마5860 결정을 계기로 –

초록

Execution costs refer to the costs required for civil execution. Article 53, Paragraph 1 of the Civil Execution Act stipulates that the debtor shall bear the costs required for compulsory execution and shall be compensated preferentially through the execution. Since the enforcement procedure is also carried out to realize private rights as part of civil judicial procedures, in principle, the cost is borne by the parties. Usually, the person who spends the actual execution cost during execution is the creditor, and the creditor pays the execution cost in advance (Article 18 of the Civil Execution Act), but when the enforcement procedure is completed, the debtor finally bears the cost (Article 53, Paragraph 1 of the Civil Execution Act). Since compulsory execution is carried out because the debtor does not perform his/her obligation, it is natural that the person who caused or triggered the cause bears the necessary costs. However, Article 53, Paragraph 1 of the Civil Execution Act above appears to be a regulation on cases where compulsory execution has achieved and terminated its purpose, and it is not clear in the text of the article whether the burden of the execution cost is stipulated until the compulsory execution takes the application but ends without achieving the purpose due to the cancellation of the procedure. In this regard, there was a recent Supreme Court decision dated September 1, 2023, 2022Ma5860. Based on the above decision, this article examined foreign legislative examples on execution costs and then conducted an analytical review of the regulations in our law. It is expected that the standards for execution costs and their burden will be specified as discretionary and individual judgments accumulate in practice and case law.

키워드