새로운 방식의 확인소송의 출현배경과 후속조치에 대한 단상 - 대법원(전)ﾠ2018. 10. 18.ﾠ선고ﾠ2015다232316 판결을 중심으로 -

초록

Whether a claim is with a normal extinction prescription or with a short-term extinction prescription, if confirmed by the judgment, it will have a 10-year statute of limitations from that point in time. When the 10-year statute of limitations is imminent, there is a need for a suspension(renewal) of the statute of limitations if the creditor has not yet obtained the satisfaction through the payment from debtor. At this time, the conventional theories and precedents exceptionally recognized the interests of the performance claim even if it has the same subject of the lawsuit as the claim confirmed by the ex-judgment. Thus, in theory, there could be a claim that last forever. However, this decision(2015Da232316) was based on a New Style of Declaration Claim(hereafter called NSDC) that was difficult to understand under the existing legal theory system and also that could not be accepted by judicial activism. The Korean Supreme Court then revised the stamp rules for civil law suits to explicitly define NSDC and, furthermore, made it lower-cost stamp than existing performance claims. According to the prevailing opinions and precedents of the past, a claim of declaration for the facts is not permitted. Thus, in order for these claims to be allowed, at least explicit provisions of the law are required, as well as immediate confirmation interests are needed. A lawsuit for Confirmation of Whether or Not Document is Authentic is representative example. Nevertheless, NSDC for suspension of prescription, which is referred to in this judgment, is not only based on no legal provisions, but also there is no immediate confirmation interests. It is also very regrettable that the Koran Supreme Court has cleared up the situation through the Supreme Court's Rule that treats the subject of stamp cost. It is never desirable that the witness statement system (Article 79 of Civil Procedure Rules), which was used as a trial in some parts of Japan, was introduced through civil procedure rules, not through laws. However, it is not new that practical practices are being embraced into the system through Supreme Court rules. Everyone will agree that it is not easy to introduce or improve the system through the revision of the law in Korea. But that may not only be undesirable but also have illegal consequences for trying to solve all problems easily with the Supreme Court rules under the logic that the Supreme Court rules are on par with the law. There is no denying that the purpose of improving the system and the attitude that values judicial demanders are important assets that should be maintained in the future. However, such a legitimate purpose would not justify a NSDC. This is because NSDC does not conform to judicial activism or traditional legal theory. I think it would be desirable to abolish NSDC by revision of stamp rules again and to take measures to ensure that the application of significantly reduced stamp fees for performance claims for suspension of prescription. Of course, I also do not approve of recognizing the existence of perpetual claims through repeated same judgments, but I would like to express my opinion through other articles.

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