독촉절차에서 소송사기의 성립가능성에 대한 비판적 고찰 = Reassessing the Applicability of Procedural Fraud in the Payment Order Procedure

다국어 초록 (Multilingual Abstract)

The payment order procedure is a special civil procedure designed to enable creditors to obtain an enforceable title quickly, simply, and at low cost. In this procedure, the court does not examine the substantive validity of the claim but merely reviews whether the formal requirements prescribed by the Code of Civil Procedure are met before issuing a payment order. Nevertheless, Korean case law has recognized the offense of procedural fraud even in the payment order procedure, thereby subjecting creditors who file false claims to criminal liability for fraud. This paper challenges such an approach. Given the structure and purpose of the payment order procedure, even if a creditor files a false claim, the court neither relies on such a statement nor falls into error. Moreover, the finality of the payment order arises not from any judicial conviction about the truth of the claim but from the debtor’s failure to lodge an objection within the prescribed period. Consequently, the essential elements of fraud—deception, error, and causality—are not fulfilled in this context.
Any harm caused by false claims can be sufficiently prevented through civil remedies, such as the debtor’s objection to the payment order or an action to contest enforcement, and criminal intervention would undermine the very purpose of the procedure. Accordingly, acts of filing false claims in the payment order procedure should not be deemed to constitute procedural fraud. If a lacuna in criminal punishment is considered problematic, it is a matter for legislative reform rather than interpretive expansion. This article develops an interpretive framework denying the applicability of fraud to the payment order procedure and supports its validity through comparative analysis with German law.