가처분과 동시에 이루어진 간접강제의 법적 성격과 불복방법

According to judicial precedents and academic theories, a provisional disposition and an indirect compulsory enforcement order can be issued at the same time if there is need to take an indirect compulsory enforcement procedure together with a provisional disposition to fix a temporary position. However, academic theories, as well as lower courts, vary regarding whether to object via an immediate appeal or to file an objection or revocation relating to an indirect compulsory enforcement order that was simultaneously issued with a provisional disposition. As a prerequisite for discourse in this paper, the author is of the view that a provisional disposition and an indirect compulsory enforcement order ought to be simultaneously permissible from the perspective of procedural availability and necessity. Furthermore, the paper explores the argumentative debate with respect to the differences between, and the practical benefits of, the methods of appeal against an indirect compulsory enforcement order that was issued together with a provisional disposition, namely, objection through an immediate appeal and request for an objection or revocation. Also, this paper examines the Supreme Court’s stance on the matter in view of the following judicial precedents Supreme Court Order 2004Ma1057 Dated January 31, 2005; Supreme Court Order 2010Ma1982 Dated April 26, 2011; and Supreme Court Order 2006Ma910 Dated June 14, 2007 and analyzes the orders rendered by lower courts. Based on the foregoing discourse, the author seeks to establish whether the legal nature of the simultaneous issuance of an indirect compulsory enforcement ought to be deemed as a disposition necessary to realize the purpose of request as prescribed by Article 305(1) of the Civil Execution Act, or whether a provisional disposition order ought to be regarded as an indirect compulsory enforcement of an executory disposition with an enforcement title as stipulated by Article 261 of the same Act. The author attempts to prove the validity of the latter. Moreover, this paper seeks to examine whether an indirect compulsory enforcement can be ordered at the same time as the decision on the merit and, if deemed so, discuss ways to set the legal nature of the same.