경계확정의 소에 관한 소고 - 형식적 형성소송설 비판

A Review about a Lawsuit for Determining Boundary : Criticism of Formal Constitutive Remedy

Formal constitutive remedy is a concept that is only used in Japan and Korea because of a theory that the object of boundary determination is the boundary on the register and its substance is non-contentious case. However, this ignores the substance of the dispute that the dispute over boundaries is about the spatial scope of land ownership. It does not conform to the intention of the party seeking a resolution to the court. As a result of accepting Japan's misinterpretation as it is, Korea said that the boundary to be determined is the boundary on the register, and the key was the restoration of the boundary. In order to give judges wide discretion in order to reasonably resolve disputes over boundaries, it was considered that the substance was non-contentious case, but as a result, the role of judges in the boundary determination lawsuit was limited to surveyors and registered agencies. It is such a consequence that Japan has established administrative procedures for determining boundaries. It is necessary to reorganize the lawsuit for boundary confirmation so that it can be a more effective and useful remedy. Obviously, boundary confirmation has a unique characteristic, and if handled according to general principles, a judgment on dismissal of the claim may be issued. This problem is sufficient to recognize the exception of the burden of proof for rational dispute resolution even in the case of unknown authenticity and impose the obligation to determine the boundaries in any form on the court. Disputes are about the scope of ownership, they must be based on a civil procedure. If so, its essence should be viewed as a lawsuit rather than non-contentious case. Therefore, the theory of formal constitutive relief, which is handled in litigation proceedings, although the substance is non-contentious case, is unnecessary and unfair. Regarding the lawsuit for determining the boundary, the principle of disposition and the burden of proof are applied as they are, but the specificity is not particularly problematic even with the German-style process of finally giving discretion to judges. Rather, all disputes over ownership can be resolved. It is sufficient for the court to make a judgment with purposeful discretion if the party asserts and proves it as a lawsuit to determine the boundaries of ownership, but if the party is not authentic even though the argument has been made. Through this re-organization, it will be possible to limit the discretion of the court in a lawsuit for determining boundaries, reduce the burden on the court, and clarify the scope of the rights and responsibilities of the parties.