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KCI등재 학술저널

시효중단을 위한 ‘새로운 방식의 확인소송’

대법원 2015다232316 판결을 司法需要者의 입장에서 지지함

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I am of the view that once a judgment ordering performance is finalized any of the following is practicable—that is, (1) performance action, (2) “new type of confirmation action,” or (3) confirmation action concerning the fixed claim itself would be feasible and thereby the relevant creditor may choose any from among the foregoing. This view is regarded as being not very disadvantageous to the debtor and it does not add any additional burden on the court. Immediately after the delivery of the judgment subject to commentary, the Rules on Stamps Attached for Civil Litigation, etc. was amended and thereby the stamp fee for the new type of confirmation action has been modified to KRW 140,000, maximum. This is a welcome change as the people, who are sovereign beings and judicial consumers, will be able to pursue the new type of confirmation action in a more convenient and affordable way. Grammar requires change according to the needs of the people and likewise the legal principles concerning confirmation actions need to be revised pursuant to the changing needs of the people. As such, judgments subject to commentary can be regarded as an effort to create an active legal culture, similar to the development of the “declaration of end of action.” In fact, since the amendment of the above Rules on Stamps Attached for Civil Litigation, etc., many cases have been filed as the new type of confirmation action. However, the Supreme Court must not argue that a “suit having been filed” is considered as “relationship of rights,” but rather, argue that it is a “fact” that can become a subject matter of confirmation following the analogical application of Article 250 of the Civil Procedure Act. Also, the interest of confirmation from a confirmation action should be expanded so that such interest is recognized not only when the confirmation action is deemed as the “most” effective and appropriate measure in eliminating the legal concerns of the relevant party but also when it is deemed a fairly effective and appropriate measure. In this sense, it would be reasonable to acknowledge the interest of confirmation from a confirmation action as the above position and try cases by setting the method of interruption of prescription (a simpler method), rather than the method of repeatedly filing actions, as one of the non-compulsory requirements of confirmation actions. Furthermore, before stating the above as an obiter dictum, which would have no legal effect whatsoever, it would be desirable to amend the Rules of Civil Procedure and the Rules on Stamps Attached for Civil Litigation, etc. by way of resolution of the Supreme Court Justices’ Council.

Ⅱ. 평석대상판결의 사실관계 및 제1, 2, 3심의 개요

Ⅲ. 새로운 방식의 확인소송의 허용가능성

Ⅳ. 새로운 방식의 확인소송의 소극적 요건의 설정

Ⅴ. 관련 문제

Ⅵ. 결론

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