부집행합의에 관한 연구 ─채무자가 부집행합의를 주장하는 방법을 중심으로─

If the parties enter into a non enforcement agreement stating that they will not carry out compulsory execution of a certain claim or limit the method or scope of compulsory execution, such agreement shall be a valid restrictive execution contract. However, its legal nature will be considered as a private dept contract. Accordingly, creditors bear a substantive obligation not to apply for compulsory execution contrary to the non enforcement agreement, while the execution agency is not bound by the non enforcement agreement. Therefore, even if the creditor applies for compulsory execution contrary to the non enforcement agreement, this is not illegal compulsory execution under the execution act, so the debtor cannot file an immediate appeal or an objection of enforcement, but can be disputed as an action for objection to execution, which is a remedy for unfair execution that is illegal under substantive law. Furthermore, the interpretation of the existence and content of the non enforcement agreement needs to be carefully reviewed in the ruling process of the court of a lawsuit. A careful considering is also required in that if a non enforcement agreement is recognized, the creditor will suffer a disadvantage equivalent to losing in a lawsuit for payment. There may be cases where the debtor claims the existence of the non enforcement agreement in the payment lawsuit because the non enforcement agreement has already been established before the conclusion of the pleadings in the lawsuit for payment. In this case, in principle, the existence and scope of the liability will not be considered as the subject of judgment. However, in light of the nature of the lawsuit for payment in which the judgment citing the claim becomes the execution title, if a non enforcement agreement is claimed, the grant or rejection of compulsory execution should be viewed as being subject matter to judgment. If the court consider the non enforcement agreement and acknowledge that compulsory execution cannot be carried out, it must be stated in the text of the decision. In addition, since the grant or rejection of compulsory execution is not a lawsuit in the payment lawsuit, it will not be blocked due to res judicata even if a non enforcement agreement is later claimed in an action for objection to execution. Not only from the perspective of subject matter and res judicata, but also from the fact that the non enforcement agreement becomes an issue mainly at the execution stage, it should be seen that claims of non enforcement agreements that were not raised in the lawsuit for payment can be argued in the action for objection to execution.