간접강제：비교법ㆍ실질법ㆍ국제사법적 고찰

Judicial penalty is a way to enforce judgment by imposing monetary burden upon the defendant who lost in the judgment but did not comply it. It creates an incentive for the defendant to comply the judgment rather than enforces the judgment directly, which is the reason why the Korean law calls it as indirect enforcement. From comparative law perspective, two types of judicial penalty are identified：In the one (Japan, France, and the Netherlands), judicial penalty is a private remedy for the claimant, which allows the claimant to collect the monetary fine. In this regime, confinement of the defendant is not allowed. In the other (Germany, the United States, and the United Kingdom), judicial penalty is rather a public or criminal sanction for the state or the court, where the monetary fine shall be attributed to the state or the court and confinement of the defendant is also considered as an alternative. Judicial penalty in South Korean law belongs to the former, as it has its root in French law on astreinte in the 19th century. This classification or qualification has an implication on the interpretation and operation of judicial penalty in South Korea. The nature of judicial penalty as a private remedy suggests that judicial penalty can be considered as a (contractual) penalty implied by the court. It can explain why the damages can and sometimes should be considered in the context of imposition or liquidation of judicial penalty and also why foreign judicial penalty can be recognized and executed, under certain requirements, and the court seized with the case on the merit has international jurisdiction over the imposition of judicial penalty. Moreover, it has some implication on the determination of applicable law for judicial penalty. Though it is undeniable that the claimant can ask to apply lex fori (or lex executionis), it is also possible to apply lex causae when the claimant wants it and the lex causae belongs to the first category.