仮処分命令の取消しと間接強制金の不当利得に関する手続法的考察

In the field of indirect enforcement systems, debates on the interpretation of the “substitutability” theory in the reception of laws have taken place in the past. These focused on considerations of the process of drafting indirect enforcement in France (astreinte) and civil procedures in Germany, and many discussions related to enforcement methods have taken place―such as the abstract prohibition of nuisances or prohibition of infringement of intellectual property rights. In recent years, legal revisions and research on the expansion of “combined use” and application range have also been accompanied by close attention being paid to the expansion of situations in which indirect enforcement functions. The authors have, in this paper, taken the Japanese Supreme Court decision of April 24, 2009, as material to present a fundamental consideration focused on the presence and absence of retroactive effects of provisional disposition orders and cancellations of indirect enforcement decisions, legal characteristics of indirect enforcement fines, and location of legal factors behind profiteering in indirect enforcement fines in civil preservation procedures. Based on the results of the above research, as their research theme for the next stage, the authors wish to systematically arrange redress methods from the perspective of civil procedure law at the present time, when cases of infringement of new kinds of personal rights appear, and to present the theoretical grounds concerning the flexible operation of indirect enforcement and execution by “substitution (simultaneously and in parallel)” as keys to the interpretation of Article 173―a new regulation under the Civil Execution Act of Japan. In so doing, the objectives of the comparative method are astreinte in France and the execution law in the U.S., with priority given to the theoretical state of Korean law, which is in the same legal family, with the means of order of German law (Ordnungsmittel), which is the parent of Korean law.