근저당권의 피담보채무에 관한 부존재확인의 소에 관한 검토

Research on the confirmation lawsuit of the absence debt of a flexible mortgage to be collateralized

A writer is a position in which the so-called principle of the supplement nature to the lawsuit of the affirmation lawsuit of a debt non-existence of a flexible mortgage does not need to be applied through this paper, and the principle of supplement nature itself must be discarded fundamentally. Although the principle of such supplement nature can raise the lawsuit of grant about the same legal relation, it is a principle received with the meaning that it is necessary to restrict raising the affirmation lawsuit. It is not an object to which the principle of supplement nature is applied between the lawsuit of the mortgage cancellation of register in a different legal relation, and the lawsuit of a collateralizing debt absence private seal. However, this is the mistaken application if this is applied in the business of a court. As a result, if the principle of supplement nature is discarded and a check lawsuit will be submitted to the grant lawsuit continuing and advancing in the same legal relation, this will be that a problem is solvable by rejection processing by prohibition of a duplication lawsuit. It is made to become the judgment which does not have inconsistency through the advance accompanying the annexation procedure of a claim when both a grant lawsuit and a check lawsuit advance, If it advances including withdrawal of a duplication claim as a matter of fact at the event of the authority to ask for explanation of a positive court, I hear that the principle of supplement nature is unnecessary, and it will be referred to as being able to prevent that the trial to a claim of the party concerned is completed by rejection after all.