[1] The institutional purport of a judgment of execution under Article 26 (1) of the Civil Execution Act, and the meaning of "judgment by a foreign court" which is the object of a judgment of execution

[2] The case holding that the so-called recognition judgment under Articles 1132 through 1134 of the former Civil Procedure Act of California of the United States does not constitute "a judgment by a foreign court" under Article 26 (1) of the Civil Execution Act

[1] Article 26(1) of the Civil Execution Act provides that "a compulsory execution based on a judgment by a foreign court shall be declared lawful by a judgment of execution in the Republic of Korea." The system of a judgment of execution established in this context is based on a foreign court's judgment without a need to compel double procedures, such as filing a lawsuit where a party's right confirmed in a judgment by a foreign court having jurisdiction is to be compulsorily realized in the Republic of Korea, but only on the basis of the foreign court's judgment without a need to enforce double procedures, such as filing a lawsuit, and, in order to obtain a judgment of execution that examines and approves only whether the compulsory realization of the judgment is permissible in the Republic of Korea, it is intended to harmonize the request of the party's smooth realization of rights with the exercise of exclusive and exclusive compulsory execution rights of the State and achieve an appropriate balance among them. In light of these institutional purport, the term "judgment by a foreign court" as provided in the above provision means a final judgment by a foreign judicial agency having jurisdiction over a conflict of legal relations under the private law, which is suitable for the realization of such compulsory performance, etc.

[2] The case holding that the so-called recognition judgment under Articles 1132 through 1134 of the former Civil Procedure Act of California of the United States of America (amended on September 22, 2002 and enforced on January 1, 2003) does not constitute a "judgment by a foreign court" under Article 26 (1) of the Civil Execution Act on the grounds that it cannot be deemed that the judgment is final and conclusive in the judicial procedure where a mutual questioning between the parties is guaranteed

[1] Article 26 (1) of the Civil Execution Act / [2] Article 26 (1) of the Civil Execution Act

Plaintiff Company (Law Firm Barun, Attorneys Park Jae-sik et al., Counsel for the plaintiff-appellant)

Defendant (Bae, Kim & Lee LLC, Attorneys Lee Dong-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na117476 decided August 6, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

Article 26(1) of the Civil Execution Act provides, “Compulsory execution based on a judgment by a foreign court shall be declared lawful by a judgment of execution in the Republic of Korea.” The system of a judgment of execution prescribed in this context refers to a judgment by a foreign judicial agency having jurisdiction over a foreign court which is ultimately guaranteed a mutual examination of the opposing parties in relation to their legal relations under the private law (private law) and is based on a foreign judgment without a need to compel double procedures, such as filing a lawsuit, where the parties’ rights confirmed in a judgment by a foreign court having jurisdiction are to be compulsorily realized in Korea, but only the Republic of Korea intends to obtain a judgment of execution after examining and approving only whether the compulsory realization of the judgment is permissible in the Republic of Korea, thereby in harmony with the exercise of the State’s exclusive and exclusive compulsory execution rights, thereby promoting appropriate balance among them. In light of these institutional intent, the term “judgment of a foreign court” as prescribed in the above provision means that the foreign judicial agency has the contents suitable for the enforcement of a judgment, such as the performance of specific benefits, and the name or form of the judgment is not an issue.

According to the records, Articles 1132 through 1134 of the former Civil Procedure Act of California of the United States (amended on September 22, 2002 and enforced on January 1, 2003), which provide for the so-called approval judgment, shall be approved in writing that the defendant registers a specific amount of debt without undergoing litigation procedures, and it is confirmed in writing that the defendant's attorney reviewed the proposed judgment contents, and that the defendant explained about the rights and defense means under the Civil Procedure Act which would be abandoned by using the above statutory procedures and gave the defendant a written advice to use such procedures, the parties may apply for the registration of the defendant's debt approval statement and the confirmation statement of the defendant's attorney-at-law who is the defendant's representative without undergoing litigation procedures, and if such application is made, the legal person shall register it with the judgment after signing it on each of the above documents.

The system of the recognition judgment as above is examined only the submission of the defendant's statement of debt acceptance and the defendant's attorney-at-law's representative in the absence of involvement in the judicial agency, and it is registered as it is. In this process, it cannot be said that the opportunity for mutual examination of the parties is guaranteed. Therefore, even though the above name is "judgment" and has a effect similar to the regular judgment, even if the defendant consented in advance to give up his/her rights under the Civil Procedure Act, such as the right for questioning, and to use the recognition judgment procedure, it cannot be deemed as a final judgment in the judicial procedure where mutual questioning between the parties is guaranteed, and therefore, it does not constitute "judgment of a foreign court" as provided by Article 26 (1) of the Civil Execution Act.

Nevertheless, the court below held that the judgment of this case, which is the above approved judgment, constitutes "the judgment of a foreign court" under Article 26 (1) of the Civil Execution Act, and approved the legitimacy of the compulsory execution. In so determining, the court below erred by misapprehending the legal principles on the subject of the judgment of execution, which affected the conclusion of the judgment. The purport of the appeal pointing this out is with merit.

Therefore, without examining the remaining grounds of appeal by the Defendant, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)