채무부존재확인의 소의 확인의 이익에 관한 고찰 – 판례를 중심으로 - (A Study on the Legal Interest of Confirmation of a Lawsuit that Confirms the Nonexistence of Obligation -With Special Reference to Cases)

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 18권 / 2호 / 103 ~ 150페이지
· 저자명 : 강수미

초록

In the case of a lawsuit for confirmation, courts intervene in disputes earlierthan a lawsuit claiming performance and it can contribute to the disputeresolution by preventing the occurrence and aggravation of a dispute throughthe abstractional confirmation of rights or legal relations. The lawsuit forconfirmation can cause the resolution of disputes which were derivative ofthe rights or legal relations to base claims for performance upon. Thereis no constraint on the subject and opponent of confirmation and it is recognizedthat its permitted limit would be expanded. Therefore, it is necessary toconduct an investigation into a legal interest of confirmation as regulatorymeasures to help facilitate effective operations of a lawsuit for confirmation.
But it also appears prominently that the trend to acknowledge widely tothe legal interest of confirmation in consideration of the characteristics ofa lawsuit for confirmation.
It is desirable to settle in one operation the relevant conflicts in a singlelitigation procedure as much as possible in terms of the economy of a legalproceeding and the prevention of a contradiction or conflict of judgments.
Although a lawsuit claiming performance, a lawsuit for confirmation anda lawsuit for formation have an independent meaning by their respective, it is inappropriate to deal equally with them from the perspective of a singlestroke resolution of correlated disputes. Consequently, the legal interest ofconfirmation is acknowledged only when the misgivings about a plaintiff’sright or legal status could be effectively and properly removed by gettinga declaratory judgment. In deciding an existence and nonexistence of thelegal interest of confirmation, we have to judge the necessity and interestof the protection of a right considering party’s specific situations, the economyof a legal proceeding, and so on in individual cases.

영어초록

In the case of a lawsuit for confirmation, courts intervene in disputes earlierthan a lawsuit claiming performance and it can contribute to the disputeresolution by preventing the occurrence and aggravation of a dispute throughthe abstractional confirmation of rights or legal relations. The lawsuit forconfirmation can cause the resolution of disputes which were derivative ofthe rights or legal relations to base claims for performance upon. Thereis no constraint on the subject and opponent of confirmation and it is recognizedthat its permitted limit would be expanded. Therefore, it is necessary toconduct an investigation into a legal interest of confirmation as regulatorymeasures to help facilitate effective operations of a lawsuit for confirmation.
But it also appears prominently that the trend to acknowledge widely tothe legal interest of confirmation in consideration of the characteristics ofa lawsuit for confirmation.
It is desirable to settle in one operation the relevant conflicts in a singlelitigation procedure as much as possible in terms of the economy of a legalproceeding and the prevention of a contradiction or conflict of judgments.
Although a lawsuit claiming performance, a lawsuit for confirmation anda lawsuit for formation have an independent meaning by their respective, it is inappropriate to deal equally with them from the perspective of a singlestroke resolution of correlated disputes. Consequently, the legal interest ofconfirmation is acknowledged only when the misgivings about a plaintiff’sright or legal status could be effectively and properly removed by gettinga declaratory judgment. In deciding an existence and nonexistence of thelegal interest of confirmation, we have to judge the necessity and interestof the protection of a right considering party’s specific situations, the economyof a legal proceeding, and so on in individual cases.

참고자료

· 없음