Section II. Execution Against Movables
384. (Commencement of execution against movables)
1. Motions for execution against movables shall be submitted to the bailiff belonging
to the court of the first instance with jurisdiction over the location of the property
concerned.
2. In addition to the matters listed in Paragraph 2 of Article 349 (Form of motions for
execution), the location(s) of the movables to be attached shall be noted in the
form of motion.
3. Execution against movables shall commence with the bailiff attaching the target
property.
4. In this Book, “movables” includes natural fruits of the land that have not yet been
separated from the land and for which it is certain that said fruits can be harvested
within one month after attachment.
5. If the bailiff meets the debtor in execution at the site of attachment, he shall give
the debtor notice to make voluntary payment prior to commencing the attachment.
6. In the course of carrying out an execution, the bailiff can receive payment of the
claim and execution costs on behalf of the creditor in execution.
385. (Attachment of movables in the possession of the debtor)
1. Attachment of movables in the possession of the debtor in execution shall be done
by the bailiff taking possession thereof.
2. At the time of attachment under Paragraph 1, the bailiff can enter and search the
residence and other locations occupied by the debtor in execution and search for
movables to be attached. In such cases the bailiff can take the necessary measures
to open locked doors, safes and other containers.
3. In selecting movables for attachment, the bailiff shall take into account the
interests of the debtor in execution, to the extent that this does not harm the
interests of the creditor in execution.
4. A bailiff may have a debtor in execution store property that the bailiff has attached,
if the bailiff recognizes such to be appropriate. In such a case, the attachment shall
be valid provided that a seal or other indication of attachment is affixed to the
attached movables.
5. Where a bailiff allows the debtor in execution to store attached movables under
Paragraph 4, the bailiff may permit the debtor in execution to use the attached
movables if the bailiff recognizes such to be appropriate.
6. Where the bailiff deems this appropriate, he can him/herself take the movables
into custody or cancel the license under Paragraph 5. The terms of Paragraph 2
shall apply mutatis mutandis to the case where the bailiff takes custody
him/herself of movables that had been put into the custody of the debtor in
execution.
386. (Attachment of movables in the possession of persons other than the debtor in
execution)
The terms of Paragraphs 1, 3, 4, 5 and 6 of Article 385 (Attachment of movables in the
possession of the debtor) shall apply mutatis mutandis to cases of movables in the
possession of the creditor in execution and movables in the possession of a third party,
where such third party does not refuse to deliver the movables.
387. (Special rules relating to registered automobiles, etc.)
1. Where attached automobiles or motorcycles have been entered in a register, the
bailiff shall direct the fact of attachment to be entered in such register.
2. Attachment of automobiles or motorcycles described in Paragraph 1 shall only
come into effect upon entry of such attachment in the register.
3. The terms of Paragraph 1 and 2 shall apply in the same manner to movables other
than automobiles and motorcycles which are required to be registered.
388. (Consolidation of cases)
1. If a further motion for execution against movables is filed against a debtor against
whom execution has already been carried out at the same location, the bailiff shall
attach such movables as have not yet been attached, if any, and if there are no
movables to be attached, shall clarify that fact, and shall consolidate the later
execution case with the previous execution case. The same shall apply if a motion
for execution against movables is filed against a debtor against whom provisional
execution has already been carried out in respect of the same location.
2. If two cases are consolidated in accordance with the first sentence of Paragraph 1,
the movables attached in the later case shall be deemed to have been attached in
the earlier case at the time of consolidation, and the motion in the later case shall
come into effect as a demand for distribution. If the creditor in the earlier case
withdraws its motion for execution against movables or if the procedures
commenced by that motion are stayed or cancelled, the movables attached in the
earlier case shall be deemed to have been attached for the purposes of the later
case at the time of consolidation of the cases.
3. If a provisional attachment case and a case of execution against movables are
consolidated in accordance with the second sentence of Paragraph 1, the movables
attached in the provisional attachment case shall be deemed to have been attached
in the case of execution against movables at the time of consolidation, and the
motion in the provisional attachment case shall have the effect of a demand for
distribution. If the creditor in the case for execution against movables withdraws
its motion for execution against movables, or if the procedures commenced by that
motion are cancelled, the movables attached in the earlier case shall be deemed to
have been attached in the provisional attachment case at the time of consolidation
of the cases.
4. Upon consolidation of any cases, the bailiff shall notify the creditor in execution,
the creditor in provisional execution and the debtor in execution.
389. (Effect and scope of attachment)
The effect of attachment shall extend to natural products of the movables.
390. (Ruling ordering delivery of attached movables)
1. Where attached movables have come into the possession of a third party, upon
motion by the creditor in execution, the court of first instance to which the bailiff
belongs can make an order by ruling for the third party to deliver the movables to
the bailiff.
2. The motion referred to in Paragraph 1 must be filed not later than one week after
the creditor in execution becomes aware that the movables are in the possession of
a third party.
3. A Chomtoah appeal can be made against a ruling on a motion referred to in
Paragraph 1.
4. A ruling pursuant to Paragraph 1 shall not be enforced after two weeks have
passed since the applicant is notified of the ruling.
5. A ruling pursuant to Paragraph 1 can be enforced even before it is served on the
third party who is in possession of the attached movables.
6. The cost of a ruling pursuant to Paragraph 1 shall be treated as a cost of common
benefit in the execution procedure concerning the movables in question.
391. (Prohibition of excessive attachment)
1. Attachment of movables shall not exceed the necessary limit of satisfaction of the
creditor in execution’s claim and execution costs.
2. If it becomes clear after attachment that the limit described in Paragraph 1 will be
exceeded, the bailiff shall reverse the attachment to the extent of such excess.
392. (Prohibition of attachment with no prospect of producing a surplus)
1. The bailiff shall not carry out an execution if there is no prospect of producing a
surplus after paying the procedural costs from the proceeds of sale of the movables
to be attached.
2. The bailiff shall reverse the execution if there is no prospect of producing a
surplus after paying any claims that have priority over the claim of the creditor in
execution and the procedural costs from the proceeds of sale of the movables to be
attached.
393. (Cancellation of attachment of movables where there is no prospect of sale)
In cases where despite attempts having been made using appropriate methods to sell
attached movables, they cannot be sold and there is no prospect of sale in the future, the
bailiff can reverse such attachment.
394. (Demand for distribution by holder of preferential right, etc.)
A person holding a lien or pledge can make a demand for distribution by submitting
documentary evidence of such right.
395. (Method of sale)
1. The bailiff shall carry out sale of attached movables by auction or tender.
2. Notwithstanding the terms of Paragraph 1, the bailiff may obtain the permission of
the court of first instance to which he belongs and sell the attached movables by a
method other than an auction or tender, or have a person other than the bailiff sell
the same, if the bailiff deems this to be appropriate in consideration of factors such
as the type or quantity of the movables.
3. The bailiff shall post notice of the movables to be sold and the method of sale on
the notice place.
4. The debtor in execution cannot offer to buy the movables.(2)
5. If the bailiff approves a purchase, the purchaser must pay the price forthwith.
6. If the movables are resold because a purchaser has failed to pay the purchase price,
the previous purchaser cannot offer to buy the movables.
7. Where the bailiff has seized movables of high value, the bailiff shall select a
valuer and have the movables valued.
396. (Maintenance of order in the sale premises)
The bailiff can restrict the entry into the sale premises or eject therefrom, or disallow
offers by, persons who engage in or cause others to engage in collusion with the
objective of blocking offers from other purchasers or reducing the price improperly or
otherwise preventing the proper implementation of the sale.
397. (Sale During Suspension of Execution)
1. In cases where a document listed in Item (a) or (b) of Paragraph 2 of Article 370
(Stay and cancellation of execution) has been filed, and there is an apprehension of
severe reduction in price of the attached movables, or of incommensurate cost
being required for storage of the movables, the bailiff can sell the seized
movables.
2. The bailiff shall deposit the proceeds of any sale of seized movables in accordance
with Paragraph 1 with the court of first instance to which he belongs.
398. (Scope of creditors entitled to distribution)
The creditors listed below shall be entitled to distribution:
(a) the attachment creditor;
(b) creditors who have made a demand for distribution before the bailiff receives
the proceeds of sale; and/or
(c) creditors who have a demand for distribution before seizure of money.
399. (Implementation of distribution by the bailiff)
1. If there is only one creditor, or if there are two or more creditors but the proceeds
of sale and any cash that is attached is sufficient to pay all the claims of each
creditor and the execution costs, the bailiff shall proceed with distribution to the
creditors and shall deliver any surplus to the debtor in execution.
2. If the bailiff has collected proceeds from sale or has attached cash in cases other
than Paragraph 1, the bailiff shall set a date for a conference concerning the
distribution of the proceeds of sale or the attached cash, within two weeks
thereafter, and notify each of the creditors of the date, time and place of said
conference. If consensus is reached among the creditors, the bailiff shall then
make a distribution pursuant to said consensus.
3. If a document listed in Items (a) through (g) of Paragraph 1 of Article 370 (Stay
and cancellation of execution) is filed, and there are creditors entitled to
distribution other than the creditor(s) in execution, the bailiff shall make a
distribution on behalf of said creditors.
4. The bailiff shall execute the distribution even if a document listed in Items (a) or
(b) of Paragraph 2 of Article 370 (Stay and cancellation of execution) filed after
payment of the price by a purchaser.
5. Claims with a definite term that have not yet fallen due shall be deemed to have
become due and payable for the purpose of distribution.
400. (Deposit by bailiff with the court)
1. A bailiff shall deposit the amount of such claim with the court of first instance to
which he belongs and make a report of the circumstances if any claim of a creditor
entitled to distribution carried out under Paragraphs 1 or 2 of Article 399
(Implementation of distribution by the bailiff) is covered under any of the
following:
(a) The claim is subject to a condition precedent or uncertain time stipulation;
(b) The claim is a claim of a provisional attachment creditor;
(c) A document listed in Item (a) of Paragraph 2 of Article 370 (Stay and
cancellation of execution) has been submitted; and/or
(d) An authenticated copy has been filed of a court proceeding temporarily
prohibiting the execution of a lien or pledge relating to the claim.
2. The bailiff shall deposit with the court of first instance to which he belongs the
amount of distribution to a creditor who does not appear to receive such
distribution.
401. (Report to court of first instance)
If a consensus is not reached under Paragraph 2 of Article 399 (Implementation of
distribution by the bailiff), the bailiff shall report the circumstances to the court of first
instance to which he belongs.
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