추상적 작위ㆍ부작위 청구의 특정과 강제집행에 관하여

In this article, we looked at the problem of specifying claims, abstractness of judgment orders, and methods of execution in abstract act or omission claims aimed only at the results to be achieved by the debtor without specifying infringement prevention measures. Abstract claim for act or omission is sufficient if the result of act or omission to be realized by the debtor is specified, and in this case, the lawsuit should be considered legitimate. If the purpose of specifying the claim is to clarify the subject of the hearing and give the defendant a chance to defend, this purpose can be sufficiently achieved by specifying the results of the act or omission required by the plaintiff, so there is no need to specify a specific method of performance. In addition, it is reasonable to apply the attitude of general opinion and precedents that it is possible to judge the merits even if compulsory execution is impossible in ordinary civil lawsuits to the extent that compulsory execution is possible. In particular, in order to leave room for compromise or negotiation between the parties, it may be desirable to proceed with the litigation rather than dismissing the lawsuit illegally. Therefore, it is not appropriate to make the possibility of compulsory execution a requirement for legality of a lawsuit. From the perspective that an abstract obligation to abstain from doing a particular act include an abstract obligation to do, a judgment ordering abstract omission can be interpreted as a judgment ordering the defendant to stop all infringement and fulfill the obligation. Therefore, as long as the judgment is interpreted to include the execution of the act, that is, the effectiveness of rights relief can be secured through the execution of the act, that is, substitutional execution, away from the traditional approach that it should only be executed by indirect compulsory performance. In the case of obstruction of living or pollution-related cases, at the stage where the defendant can arbitrarily perform, the means and methods for removing infringement are entirely left to the defendant's choice. However, these options only exist until compulsory execution begins. If the defendant refuses to perform arbitrarily, the plaintiff may choose substitutional execution or indirect compulsory performance as a method of compulsory execution. In general, when a judgment ordering the defendant's abstract omission is made, the execution method in response to it is considered to be indirect compulsory performance. However, since the judgment ordering abstract omission contains complex contents such as the duty to act, it will be useful for the ultimate remedy of the plaintiff 's rights if it can also act necessary to achieve an appropriate situation. For example, in the case of a judgment prohibiting the inflow of noise, it is not impossible for the defendant to pay the cost and the plaintiff to install noise prevention facilities. If so, the plaintiff can choose such substitutional execution at the beginning stage of compulsory execution. In other words, the defendant shall not arbitrarily perform at the stage of compulsory execution by the plaintiff or interfere with the method desired by the plaintiff. The purpose of considering rulings and enforcement methods ordering abstract act or omission was to effectively enforce or satisfy the rights of the plaintiff. The defendant may obey the court's omission order or arbitrarily meet his/her obligations. Perhaps the defendant will choose the least burdensome measure. As long as the defendant does not choose the method of performance and enters the stage of compulsory execution, even if the plaintiff's option is recognized, it does not disadvantage the defendant. Based on the principle of private autonomy, the defendant's autonomous choice is protected by having the option of a means to remove the infringement result until the commencement of compulsory execution. If the defendant proceeds to the stage of compulsory execution without arbitrarily performing, it is reasonable to assume that the judgment and choice of the execution method are transferred to the plaintiff. It is sufficient if the results of the act or omission are displayed in the judgment that is the basis for execution. As can be seen from the characteristics of the diversity of relief methods, the content of the claim is embodied by choice among several relief methods. Although the defendant can choose the means or method to fulfill his/her obligations by indirect compulsory performance, if he/she does not take effective measures, the plaintiff may be considered to have the option of a specific execution method transferred to the plaintiff, so the plaintiff may use substitutional execution. Even in this way, the legal clarity required in compulsory execution is not violated. This is because in compulsory execution, the execution method is not mixed, but independent of each other, and the plaintiff must follow the execution method prescribed by the Civil Execution Act. This is also because no new compulsory execution is created that the legislator does not intend.