確認의 對象과 權利保護의 利益

Abstract

The writer scrutinizes the interest of confirmation by analyzing that concept into qualification for confirmation and necessity for protection of claiming right. This article has following characteristics comparing precedents and previous arguments. ① The lawsuit for Grant of Execution Clause belongs to the lawsuit for formation. For this reason, grant of execution clause is conferred by final and conclusive judgment favorable for claimant. ② The legal procedural relations can be qualified for lawsuit for confirmation if confirming that relation is necessary for the protection of claimant and there does not exist any other sort of lawsuit except that for confirmation. ③ Interest of confirmation concerning a third party's legal relation must be negated unless res judicata of favorable judgment for claimant extends to that third party. Permissible lawsuit of confirmation is limited to the following situations such as the lawsuit is filed in the capacity of claimant in charge or that third party intervenes as independent party. ④ Interest of confirmation is one of procedural requirements which precedes the coming into being of confession. If that can not be the proper rule, the lawsuit of confirmation will be rejected irrespective of controversies between the parties before filing the lawsuit if defendant confesses the claimant's allegations in the proceedings. ⑤ The writer stresses the necessity of establishing the notion of constructive identification of interest of confirmation. ⑥ The rule of supplementary nature of lawsuit claiming confirmation should not be applied when the lawsuit for confirmation is consolidated to the lawsuit claiming performance and the cause of confirmation constitutes prior questions of he lawsuit claiming performance.