民事執行에 있어서 信義則과 權利濫用의 禁止– 독일 민사소송법 제765조a의 執行保護를 소재로

Based on Article 765a of the German Civil Procedure, which allows the suspension, cancellation, or prohibition of specific execution measures against good morals, in the Civil Execution Act, it was also examined that the principle of good faith and the prohibition of abuse of rights function as the highest norm and are expressed as specific regulations. Civil execution procedures must be carried out fairly, quickly and economically, so that the rights of execution creditors must be protected efficiently, and the execution parties and stakeholders must proceed with the procedure in accordance with the rules of good faith. In civil execution, rapid procedures and protection of creditors' rights must be prioritized in order to realize the rights that have become the content of the executive authority. However, the protection of third parties or debtors must also be considered. In civil execution, the tension between the realization of the rights of the execution creditor and the protection of the execution debtor should be adjusted, and the execution should be most effective for creditors and the least painful for debtors. According to current practice, measures against enforcement resistance, property concealment, and illegal activities should still be taken to ensure the effectiveness of civil execution and to realize the rights of creditors, however, in line with that, it is necessary to pay increasing attention to the opposite proposition of preventing harsh execution against execution debtors. In this sense, we considered the principles of good faith under the Civil Execution Act and the prohibition of abuse of rights and the enforcement protection procedures under the German Civil Execution Act, a specific system derived therefrom.