소극적 확인의 소와 절차적 형평

• 영문명: A Negative Declaratory Remedy and Procedural Equilibrium
• 발행기관: 한국민사소송법학회
• 저자명: 정상민(Sangmin Jung)
• 간행물 정보: 『민사소송』제28권 제2호, 37~112쪽, 전체 76쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2024.06.30

국문 초록

A negative declaratory remedy is a very important and necessary judicial remedy. It opens the way for a debtor, who was originally placed in a passive, defensive position, to become a plaintiff and take advantage of the proceedings. In addition to the constitutional value of guaranteeing a party's right to a trial, it also promotes equality of arms between the parties. However, the exercise of the right to trial may be regulated for the protection of the other party and to secure the functioning of the judiciary, and in the case of a declaratory remedy, the ‘a benefit of confirmation’ is a special interest of the plaintiff, which functions as a principle to deter others and control the use of the litigation system against equity in terms of national and public interest. When a negative declaratory remedy is filed, the creditor is forced to respond and assert and prove the existence of the debt regardless of its willingness or readiness, resulting in the enforcement of the debt in court. Given its function and nature, particularly its pre-emptive nature and potential for abuse, the need to promote procedural equity through the benefit of confirmation is very strong. Even if a negative declaratory remedy is brought first, if it triggers a coercive remedy, it is preferable to resolve the dispute finally through a coercive remedy, which have a enforcement power. If so, a contest between a coercive remedy and a negative declaratory remedy of the same claim should be resolved on the basis of the superiority of the former over the latter, rather than formal equal treatment based on the same subject matter. This is not only in the interest of procedural equity for the parties, but also in the interest of a one-time and final resolution of the dispute, litigation economy and the avoidance of conflicts.

목차

Ⅰ. 머리말

Ⅱ. 법사적·연혁적 검토

Ⅲ. 현상과 기능에 대한 고찰

Ⅳ. 이행의 소와의 동가치성·대등성 비판

Ⅴ. 개별 절차법 쟁점에 대한 검토

Ⅵ. 보험회사에 의한 부당제소

Ⅶ. 맺음말

키워드

소극적 확인의 소 확인판결 확인의 이익 확인의 소의 보충성 어뢰소송 a negative declaratory remedy a declaratory judgment a benefit of confirmation supplementary nature of a declaratory lawsuit a torpedo lawsuit