자동차에 대한 민사집행절차에 있어서 효율적 점유확보방안 - 소위 ‘대포차’를 중심으로

In civil procedures, the executory power of a court’s order as to the transfer of vehicle ownership (hereinafter “transfer order”) is deemed relatively valid only for the obligor indicated in the transfer order. Therefore, if a third party were to be in possession of the vehicle subject to ownership transfer, the execution of such transfer order becomes null and void. As can be seen, relevant laws in Korea (Civil Procedure Act and Civil Execution Act) strictly limit the scope of executory power in order to comply with the basic principle of procedural law that guarantees sufficient procedures whereby an obligor subject to civil execution can adequately claim and verify his/her right. Such traditional legal principle should be valued but in harmony with other doctrines of equal value. Of note, guaranteeing an obligee’s exercise of property right by ensuring the performance of the obligee’s claim is equivalent in value to the principle of procedural guarantee (due process in civil execution procedures). Given that the inherent nature of vehicles lies in the easiness of ownership transfer, there are frequent cases where a transfer order becomes non-executable, namely cases pertaining to illegally-registered vehicles (vehicles in which the registered owner and the actual driver is different). The act of purchasing an illegally-registered vehicle for one’s own personal benefit greatly undermines law and order and impedes the efficiency of civil execution procedures, and thus shall not be tolerated. Accordingly, legal frameworks and relevant statutes need to be revised and supplemented so as to effectively execute a transfer order against vehicle owners with malicious intent, such as illegally-registered vehicle owners. In order to effectively execute a transfer order, the theoretical basis lies in regarding an illegally-registered vehicle owner as a person possessing the object of execution (claim) for the actual owner indicated on the vehicle registration form rather than as a person with exclusive ownership (see Article 218(1) of the Civil Procedure Act). A transfer order against an illegally-registered vehicle owner should be executable by authorizing the succession of executing the transfer order against the actual owner indicated on the vehicle registration form (“execution clause for succession”), without the need for obtaining a separate power of execution. In this case, relevant laws need to be amended in order to authorize executory power to an unspecified successor, factoring in the easiness of transferring vehicle ownership. Moreover, in the event the current owner of an illegally-registered vehicle cannot be identified when applying for execution of transfer order (prior to commencing forced execution), relevant law revisions are also called for to allow such an application by indicating the owner on the vehicle registration form (or leased vehicle owner) as the obligor or by not specifying the obligor. Subsequently, civil enforcement laws, etc. need to be amended for the executory power of the transfer order issued thereof applies to the actual driver.