민사집행법상 재산명시의 신속성･실효성･정보화 제고방안

초록

When a debtor fails to repay a debt to a creditor, the creditor often uses the property specification system to find out the debtor's assets. The property specification system has been criticized for its effectiveness in the past. Accordingly, when the Civil Execution Act was enacted in 2002, the detention system and the property inquiry system were introduced to ensure the effectiveness and efficiency of the property specification system. Despite these complementary responses to the property specification system, the system still has problems such as i) the lengthening period required for property specification, ii) the debtor's submission of a formal property list, iii) reduced usability of the property list, iv) the inefficiency of the detention system, and v) the limitations of the property inquiry system. As a result, the efficiency and effectiveness of this system are still being debated. Accordingly, there are opinions that the effectiveness of the current property specification system under the Civil Execution Act should be improved. In this paper, in connection with the necessity of such social discussion, we discussed rational methods of property specification from the perspectives of speed, effectiveness, and information technology. In addition, we conducted a comparative legal review of property specification from the perspectives of speed, efficiency, and information technology. Based on the implications of each country through comparative legal review, the following measures were examined to increase the speed of property specification. First, referring to German practice, it is reasonable to allow the debtor to induce voluntary performance by himself/herself by giving the debtor a certain period of time rather than immediately collecting the debtor's property information from the debtor who does not perform his/her obligation. Second, it is necessary to consider the abolition of the principle of preemptive property specification by examining the Japanese case. Third, it is reasonable to determine that the debtor's foreign properties are not subject to property specification in principle. However, in exceptional cases where the debtor is a domestic parent company or parent company, it is reasonable to determine that accounts held by overseas business offices or branches without corporate status of the domestic parent company or parent company are included in the debtor's property specification assets. The measures to improve the effectiveness of the property specification were reviewed as follows. First, the deadline for the property that the debtor must list in the property list in the property specification procedure should be reviewed as follows. Considering that the property specification is prepared voluntarily by the debtor, so it is difficult to guarantee its accuracy, and that even if the debtor does not appear on the property specification date or fails to submit the property list, it is subject to a somewhat weak detention against the debtor, it is necessary to extend the timely scope of the debtor's property specification in the property specification procedure. Second, the property list that the debtor must submit to the court must list all properties subject to compulsory execution, and it is reasonable to include not only the debtor's active properties but also negative properties such as debts or liabilities in the property list. Third, after reviewing German practice, it is necessary to very carefully consider a plan to extend the detention execution period and increase the detention period. The measures to enhance the informationization of property specification were reviewed as follows. First, it is necessary to carefully consider the introduction of a debtor's workplace, business place, and salary receivable inquiry system based on Japan's order to provide information on the debtor's workplace and Germany's system for providing third-party information (Auskünfte Dritter) on debtor's property. However, in this case, since it may be somewhat harsh on the debtor or may infringe on privacy, it is reasonable to supplement this system with i) exceptional application of the principle of preemptive property specification, ii) reasonable limitation of the scope of applicants, iii) sanctions on the use of property inquiry results for purposes other than compulsory execution, and iv) nondisclosure of the property disclosure date. Second, the introduction of an integrated financial property information inquiry system (tentative proposal) by combining the National Tax Service's batch inquiry function and the Financial Supervisory Service's computerization function for all financial institutions seems reasonable at first glance. Third, since this integrated financial property information inquiry system introduction plan may cause personal information exposure and problems, we reviewed and presented a consortium blockchain introduction plan to overcome this.

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