Summary
An interest in a declaration is recognized only where a declaratory judgment is an effective and appropriate means of removing uncertainty concerning a present right or status.
2.1The Standard by Which the Path Opens
Merely speaking of the unease does not itself determine the form of the judgment that will remove that unease. Plaintiff A wishes Defendant B to deliver the thing promised, but the draft recorded only a confirmation that a right exists. In this scene, the unease felt by the plaintiff may serve as a motive for filing suit, yet it does not determine the form of the judgment that will remove that unease. The preceding section concluded that the desired performance must be claimed by including it in the requested order, and that the court may not arbitrarily add relief that has not been requested. Taking this up, the question this stage addresses is whether, whenever there is unease, all of it can be resolved by a declaratory action, and what the standard is that opens the gateway to this relief. Here, gateway means the entrance to a claim ordering the requested performance, and one must find the standard that judges whether that door opens.
Precedent on confirmation clarifies the entry conditions of an action for confirmation as follows. "An action for confirmation requires an interest in confirmation as a requirement for judicial protection, and the interest in confirmation is recognized where obtaining a declaratory judgment is the most effective and appropriate means of removing the unease or risk existing in the plaintiff's right or legal position." (Supreme Court Decision 2016Da275679 decided March 15, 2018) In this language, the interest in confirmation means the need for judicial protection to obtain a declaratory judgment. The subject the language requires is the plaintiff, and the object of assessment is the unease or risk existing in the plaintiff's right or legal position. And whether a declaratory judgment is the most effective and appropriate means of removing that unease becomes the condition for recognizing the interest in confirmation.
The key linking the above language with the conclusion of this section is that the assessment at the present stage must be divided into two layers. The first layer is to examine what has been specified in the prayer for relief, that is, whether the requested performance, parties, and conditions have been specified in the prayer for relief. The second layer is to examine whether the chosen action satisfies the requirements for judicial protection to defend that demand. If Plaintiff A demands delivery of the thing desired, and specifies the thing, act, and counterparty demanded in the prayer for relief and satisfies the requirements for judicial protection of the chosen action, the entrance to this relief opens. The reason for separating specification from satisfaction of the requirements is that, so long as what the claim seeks has not been specified, one cannot determine what right can be defended, and a claim that cannot defend a right does not pass through the gateway even if it has been specified.
The counterargument that resists this standard most strongly is that, if the distinct interest inherent in confirmation is narrowed unduly merely because other means exist, the form of claim comes ahead of the substance of the right. This dissatisfaction is persuasive from A's position. A wishes delivery of the thing, and if the right is settled by confirmation alone, one may expect to reduce the additional friction that arises over whether delivery occurs. Yet even so, one cannot recognize an interest in confirmation on the basis of a general sense of discomfort alone. The interest in confirmation is bound by the requirement that it be the most effective and appropriate means of removing the existing unease or risk, and if one opens the door to confirmation merely upon a complaint of unease without meeting that requirement, a declaratory action would swallow up the gateway to other relief in its stead.
What can be confirmed in this scene is that A wishes B to deliver the thing promised and that the draft recorded only a confirmation. Setting this fact against the foregoing conditions reveals that the demand for the performance of delivery and the statement of confirmation of a right diverge from one another. However, what has been specified in the record is only the kinds of materials on the prayer for relief in the complaint, the legal relationship to be confirmed, the present unease, and other means of relief, and the facts of the actual case, service, the result of performance, and the detailed facts of the reasons for judgment have not been confirmed. Accordingly, from this scene alone one cannot determine whether the interest in confirmation is recognized, or what performance order will be issued. Where the requested order or the present legal unease is not specified, the assessment remains undetermined.
The conclusion this section permits is that, where the requested performance, parties, and conditions are specified in the prayer for relief and the requirements for judicial protection of the chosen action are satisfied so that the demand can be defended, the entrance to this relief opens. By contrast, an interpretation that recognizes the interest in confirmation merely upon speaking of unease, or upon a general sense of discomfort alone, is not permitted. Maintaining the definition of the interest in confirmation as the need for judicial protection to obtain a declaratory judgment, it is assessed under the requirement that it be the most effective and appropriate means of removing the existing unease or risk. If a claim seeking only confirmation is converted into a lawful claim for performance, the assessment of the possibility of a performance order is made anew.
2.2The Conditions That Block Relief
The preceding stage confirmed that the desired performance must be claimed by including it in the requested order, and that the court may not arbitrarily add relief that has not been requested. In such a situation where, though one wants performance, the order secured stops at confirmation of a right, can all unease be resolved through a declaratory action merely upon asserting that there is unease? What are the conditions under which relief is blocked?
The precedent corresponding to this question prescribes the interest in confirmation as one of the requirements for judicial protection and clarifies its meaning as follows. “The interest in confirmation is recognized where obtaining a declaratory judgment is the most effective and appropriate means of removing the unease or risk existing in the plaintiff's right or legal position.” (Supreme Court Decision 2016Da275679 decided March 15, 2018) The subject spoken of here is the plaintiff, whose act is to bring an action for confirmation seeking a declaratory judgment, and the requirement is that the judgment be the most effective and appropriate means of eliminating the unease or risk placed on the present right or legal position. That is to say, the interest in confirmation does not arise of its own accord simply because unease exists, but is judged by weighing the instrumental suitability of the declaratory judgment.
This language distinguishes the interest in confirmation from the relief of receiving performance, and then connects with the principle confirmed earlier. The interest in confirmation means the need for judicial protection to obtain a declaratory judgment, and this need can be established only where there is an existing unease or risk that can be removed by a declaratory judgment. Yet since an action for confirmation is not a claim ordering performance, obtaining directly by order the delivery of the thing desired by the plaintiff is not accomplished within the form of this action. Therefore, where one wants performance but the order secured stops at confirmation of a right, or where the legal interest in confirmation is not recognized, if even one of the statutory requirements is unmet, the gateway to relief is closed. This is why the requirement of the interest in confirmation and the content of relief as performance are kept separate.
Even so, if one narrows the interest in confirmation unduly merely by pointing to the existence of other means, the result may be to turn the plaintiff away without examining the substance of the right, on the basis of a mere technical classification of the form of claim. The loss this counterargument targets is the inconvenience of losing the opportunity to relieve a legal position placed in real danger, and its value lies in placing the substance of the protection of rights ahead of the form of litigation. Even so, the court cannot recognize an interest in confirmation on the basis of a general sense of discomfort alone. That is to say, one accepts the point that one should not be bound by form, yet does not abandon the standard itself of removing the existing unease or risk in the most effective and appropriate manner.
Looking only at the facts set in the synthetic scene, Plaintiff A wishes Defendant B to deliver the thing promised, but the draft recorded only a confirmation that a right exists. In this situation, since the requested order is confirmation and the desired relief is delivery, whether a declaratory judgment is the most effective and appropriate means of removing the present unease becomes the issue. However, even taking as a premise the fact that materials on the prayer for relief in the complaint, the legal relationship to be confirmed, the present unease, and other means of relief have been secured, if a claim seeking only confirmation is converted into a lawful claim for performance, the assessment of the possibility of a performance order is made anew. On the present materials alone, whether this falls within the case where the requested order or the present legal unease is not specified has not been determined; accordingly, the outcome of the judgment and the possibility of performance remain undetermined.
What this section permits is the judgment that, where the requirement of the interest in confirmation is met, an action for confirmation stands of itself, together with the distinction that, where the requirement is not reached, this gateway is closed. To stand at the entrance to a claim ordering performance, one must specify the thing, act, and counterparty demanded in the prayer for relief and satisfy the requirements for judicial protection of the chosen action. Conversely, where one is content with confirmation alone or where there is no legal interest in confirmation, one cannot proceed to the assessment of a performance order.
2.3The Boundary That Remains When There Is No Data
As the conclusion of the preceding analysis stage would have it, the desired performance must be claimed by including it in the requested order, and the court may not arbitrarily add relief that has not been requested; the question that follows is whether, even in a state where that demand itself is not specified, a declaratory action can resolve all remaining unease. Plaintiff A wishes Defendant B to deliver the thing promised, but the draft recorded only a confirmation that a right exists, and what legal relationship is to be confirmed and what unease is to be removed is not clearly revealed within the prayer for relief of the complaint. As this shows, the question now is what standard of assessment to apply in the case where the requested order or the present legal unease is not specified.
An interest in confirmation is recognized only where the declaratory judgment is an effective and appropriate means of removing the unease as to the present right or position. Supreme Court Decision 2016Da275679 decided March 15, 2018 holds that “an action for confirmation requires an interest in confirmation as a requirement for judicial protection,” and recognizes the interest in confirmation “where obtaining a declaratory judgment is the most effective and appropriate means of removing the unease or risk existing in the plaintiff's right or legal position.” Here, the requirement for judicial protection is the condition that determines whether the plaintiff who filed the suit has met the need to be protected by a judgment, and that interest in confirmation means the need for judicial protection to obtain a declaratory judgment. What this language directly prescribes is the relationship between these two requirements, and it does not prescribe in advance how to proceed when the materials for assessment are insufficient.
Returning to that language, the interest in confirmation takes as its criterion not the form of the judgment but the effectiveness of the protection obtained through the judgment. That is to say, the stage where the legal relationship to be confirmed is specified and the existing unease or risk is removed by obtaining a declaratory judgment is distinguished from the stage where, because which order is sought and which unease is to be removed are not determined on the documents, one cannot even settle what to assess. The former is the place of inquiring whether the requirements are met; the latter is the place where the object of assessment itself has not been formed. This is why, where the requested order or the present legal unease is not specified, the matters whose assessment material is unspecified must be left undetermined, distinguished from impossibility. If one adds conjecture to fill in the deficient materials, the result is to create the foregoing conditions anew.
The strongest counterargument arises from the point that, in dealing with the interest in confirmation, if the existence of other means of relief is put too far forward, one disregards the substance of the right and raises only the formal classification of the action. In the end, if the goal is delivery of the thing, the argument runs, one may lose the substance of the unease suffered by the parties if the distinct interest inherent in confirmation is narrowed unduly on the ground that a performance judgment is a more direct means of realizing the right. This disadvantage must clearly be borne in mind. Yet one cannot relax the requirements concerning the interest in confirmation so as to recognize the interest in confirmation on the basis of a general sense of discomfort alone. The discomfort is not bound up with the legal relationship that is the object of confirmation, and thus has limits in specifying the unease to be removed by the judgment; and one must not collapse the requirement itself in order to reduce the danger of formal classification that the counterargument speaks of.
Weighing the facts of the synthetic scene against the conditions, Plaintiff A wishes to receive from Defendant B the delivery of the thing promised, yet has set down in the prayer for relief only a confirmation that a right exists. In this case, the requested performance is specified, but the order secured stops at confirmation of the right and does not reach the entrance to a claim ordering performance; and within the draft it is hard to find any language expressly stating what the legal relationship to be confirmed is. Yet whether the unease actually exists or whether materials on other means of relief were actually submitted cannot be known. Only the records concerning the prayer for relief in the complaint, the legal relationship to be confirmed, the present unease, and other means of relief are designated as the record for assessment, and the fact that the record itself has been submitted is not settled. Therefore, in this scene where no further circumstance can be confirmed, it is proper to leave the matter undetermined rather than declare impossibility.
The conclusion this section permits stops at grasping the interest in confirmation as a matter of the effective and appropriate means of removing the existing unease, yet does not go so far as to recognize that interest on the basis of a general sense of discomfort alone. At the same time, it is not permitted to declare this impossible merely on the ground that the requested order and the present legal unease are not specified, for those materials indicate only a lack of assessment material and do not mean that relief is permanently closed. If it is confirmed by converting a claim seeking only confirmation into a lawful claim for performance, the assessment of the possibility of a performance order must be made anew, but here it cannot be regarded as actually converted.
2.4The Records Needed for Determination
Premised on the points that the performance the plaintiff wishes for must be claimed by placing it in the requested order, and that the court may not arbitrarily add relief that has not been applied for, this examines how far one can proceed with a claim that states only a confirmation. Because merely asserting unease does not immediately open the door to a declaratory action, one is led to ask what remains in order to judge whether that door opens. Can every unease be resolved by a declaratory action? Added to this is the further question: Which records are needed for the determination? In other words, what is needed is the task of clarifying not the form of the judgment but what content that form must contain.
The precedent on the interest in confirmation sets out its wording as follows. Supreme Court Decision 2016Da275679 decided March 15, 2018 states that an action for confirmation requires the interest in confirmation as a requirement for judicial protection, and provides that the interest in confirmation "is recognized when obtaining a declaratory judgment is the most effective and appropriate means of removing the unease or risk presently existing in the plaintiff's right or legal status." The subject indicated by this wording is the plaintiff seeking confirmation, and that plaintiff's right or legal status must harbor unease or risk in the present, not in the future. Seen from the side of the act, what the plaintiff seeks is the obtaining of a declaratory judgment, and a condition is attached that this judgment must be the most effective and appropriate means of removing the unease. Here, the phrase "effective and appropriate means" is read as meaning not the act of expressing unease in words, but whether the unease can be removed by a judgment.
This wording and the conclusion laid out earlier connect as follows. The reason the existence of the unease and the capacity of the judgment to remove that unease must be viewed separately is that the former is the present state felt by the plaintiff, whereas the latter concerns whether the judgment the court will render can actually remove that state. The interest in confirmation means the need for judicial protection in obtaining a declaratory judgment. That is, for the unease the plaintiff suffers to lead to an interest in confirmation, obtaining a declaratory judgment must be the effective and appropriate means of removing that unease. This judgment of capacity as a means shall rest on what is recorded in materials concerning the requested order and prayer for relief of the complaint, the legal relationship to be confirmed, the present unease, and other means of relief. Only materials left in the records become the material for the stage determination, and missing records are not filled in by inference. At the entrance to a claim demanding an order of the performance sought, this judgment distinguishes whether one may proceed to a judgment of the possibility of a performance order where the object, act, and counterparty sought are specified in the prayer for relief and the requirements for judicial protection of the chosen form of action are satisfied.
The counterargument that the existence of another means may unduly narrow the inherent interest in confirmation carries weight from the point that confirmation is not a mere alternative but the place where the substance of a right is clarified. If the form of claim is unduly emphasized, technical classification takes precedence over the substance of the right, and even if there is unease or risk presently existing in the plaintiff's right or legal status, if obtaining a declaratory judgment is not the most effective and appropriate means of removing it, the interest in confirmation is not recognized. The loss targeted by this counterargument is the inconvenience that the substance of the right is pushed aside by the classification on paper and is not examined sufficiently, and the risk that the interest in confirmation is narrowed by formal logic so that legitimate means of rights protection are blocked. Since the interest in confirmation means the need for judicial protection in obtaining a declaratory judgment, an unpleasant feeling severed from the capacity of a judgment to remove the unease does not satisfy this requirement. While not pushing aside the value of the substance of the right raised by the counterargument, the conclusion is maintained that a door does not open on the basis of an unpleasant feeling alone.
The facts relevant to this question in the synthetic scene are narrow. Contrasting this fact with the foregoing conditions reveals that although the object sought and the counterparty are specified, the order contained in the prayer for relief of the complaint stops at confirmation of a right and does not reach performance. Whether the requested order was specified as performance, and how the present legal unease was specified, can be judged only from what is written in the documents of the records. Since the scene does not fix a year, amount, commencement date, or outcome of judgment, such matters remain undetermined. If it is confirmed that a claim seeking only confirmation is converted into a lawful claim for performance, the judgment of the possibility of a performance order must be redone. The boundary in handling this scene is not to insert what is absent from the records and not to make it certain.
The conclusion permitted by this section is that not every unease expressed in words is resolved by a declaratory action, and that the interest in confirmation is recognized, as the need for judicial protection in obtaining a declaratory judgment, when a declaratory judgment is the effective and appropriate means of removing that unease. The stage determination shall rest on what is recorded in materials concerning the prayer for relief of the complaint, the legal relationship to be confirmed, the present unease, and other means of relief, and missing records are not filled in by inference. The boundary that the interest in confirmation is not recognized on the basis of a general unpleasant feeling alone is equally clear. What is not permitted is the conclusion of recognizing the interest in confirmation on the basis of unease alone by going beyond the records or filling them in by inference, and the conclusion of the court arbitrarily adding performance that has not been applied for in a situation where the order secured stops at confirmation of a right.
2.5Circumstances That Change the Decision
The performance one wants must be claimed by placing it in the requested order, and the court may not arbitrarily add relief that has not been applied for. After the preceding section distinguished the places of confirmation and performance, this section asks how those places change if the shape of the claim is altered. Can every unease be resolved by a declaratory action, and what change overturns the existing stage determination? These are the remaining questions.
The wording set to this question concerns the interest in confirmation. Supreme Court Decision 2016Da275679 decided March 15, 2018 writes this in Summary of Decision [1]: "An action for confirmation requires the interest in confirmation as a requirement for judicial protection, and the interest in confirmation is recognized when obtaining a declaratory judgment is the most effective and appropriate means of removing the unease or risk presently existing in the plaintiff's right or legal status." In this wording, the action for confirmation determines what the subject and object of the claim ask to have confirmed, and the requirements for judicial protection determine the qualifications to entrust that confirmation to adjudication. Furthermore, the unease or risk presently existing indicates what must be removed now, and the effective and appropriate means indicates whether a declaratory judgment is better than anything else in removing it.
This wording may now be connected with the conclusion of this section. The interest in confirmation means the need for judicial protection in obtaining a declaratory judgment, and is recognized only when a declaratory judgment is the effective and appropriate means of removing the unease in the present right or status. Here, the existence of the unease and the qualification of the means to remove it are distinct stages of judgment. If the former is absent, there is nothing to confirm; if the latter is absent, the unease remains even after confirmation is obtained.
The strongest counterargument aims at the direction of the criteria of determination. Because another means exists, the inherent interest in confirmation may be unduly narrowed, and if the form of claim is unduly emphasized, technical classification takes precedence over the substance of the right. The loss pointed out by this counterargument is the inconvenience of a person who actually has unease being turned away at the door merely on account of form. Even when answering this counterargument, however, the range in which the interest in confirmation is placed as the need for judicial protection in obtaining a declaratory judgment is preserved. The interest in confirmation cannot be recognized on the basis of a general unpleasant feeling alone. If the unease pointed to by a remedy other than confirmation is what must be removed now, the qualification of the means to remove that unease must still be asked.
In the synthetic scene, the facts corresponding to this question are only the confirmation contained in the draft. What Plaintiff A wants is delivery of an object, and what has been written down is confirmation that the right exists. Contrasting these two with the foregoing conditions, a claim seeking only confirmation remains outside the entrance to a claim demanding an order of the performance sought, and at the point of asking about the interest in confirmation, one must see whether a declaratory judgment is the effective and appropriate means of removing the unease. Only by assembling materials concerning the prayer for relief of the complaint, the legal relationship to be confirmed, the present unease, and other means of relief can it be determined which side is correct. Where the present unease or the requested order is not specified, neither the interest in confirmation nor the entrance to performance can be fixed. The facts of a real case, service, the results of performance, and the reasons for judgment, and the year, amount, commencement date, and outcome of judgment absent from the synthetic scene, remain unresolved here.
In sum, the conclusion permitted by this section is that the interest in confirmation is recognized only when confirmation is the effective and appropriate means of removing the present unease, and that if a claim seeking only confirmation is converted into a lawful claim for performance, the judgment of the possibility of a performance order is redone from the stage onward. What is not permitted is the attitude of recognizing the interest in confirmation on the basis of a general unpleasant feeling alone, or of treating confirmation alone as having placed performance in the requested order. So long as the interest in confirmation is defined as the need for judicial protection in obtaining a declaratory judgment, the unease of every person standing before the door of confirmation is not resolved by a declaratory action.
2.6The Strongest Counterargument and the Answer
Whether every person complaining of unease in this scene can proceed to a declaratory action is the present question. Unease expressed in words and the judgment that will actually remove that unease are set as different issues. The moment unease is said to exist, an interest in confirmation does not arise at once.
The precedent on the interest in confirmation writes as follows: "[1] An action for confirmation requires the interest in confirmation as a requirement for judicial protection, and the interest in confirmation is recognized when obtaining a declaratory judgment is the most effective and appropriate means of removing the unease or risk presently existing in the plaintiff's right or legal status." (Supreme Court Decision 2016Da275679 decided March 15, 2018). This wording takes as its subject the plaintiff who brings an action for confirmation. The condition of unease or risk presently existing in the plaintiff's right or legal status is attached, and the requirement that it must be the most effective and appropriate means of removing that unease or risk follows. The interest in confirmation is defined as a term meaning the need for judicial protection in obtaining a declaratory judgment.
The two things required by the above wording are placed at distinct stages of judgment. One is whether there is unease or risk presently existing in the plaintiff's right or legal status; the other is whether a declaratory judgment is the most effective and appropriate means of removing it. Satisfying the former does not automatically bring the latter along. The reason these two must be distinguished is that the interest in confirmation does not simply ask whether there is unease expressed in words, but also asks whether the judgment that will remove that unease is an effective and appropriate means. It is only where the requirement is satisfied that the interest in confirmation is recognized, and no new conditions are added beyond it.
The counterargument that the existence of another means may unduly narrow the inherent interest in confirmation carries the greatest weight. This counterargument points to the loss that, if the form of claim is unduly emphasized, technical classification takes precedence over the substance of the right. If a plaintiff who truly suffers unease is turned away at the door merely because the form of the action is something other than confirmation, the result is that substantive rights protection is bound by form. Yet the foregoing answer is that the interest in confirmation cannot be recognized on the basis of a general unpleasant feeling alone. This answer does not erase the disadvantageous part of the counterargument. It sets out limits on both sides together: the interest in confirmation must not be viewed narrowly, but equally, no need to protect a right arises merely from a feeling that stays at the level of a general unpleasant feeling.
Plaintiff A wants from Defendant B delivery of an object agreed upon, but since the draft states only confirmation that the right exists, the performance the plaintiff seeks is delivery of an object, while the content of the order secured remains at confirmation. Measured by the entrance to a claim demanding an order of the performance sought, one proceeds to a judgment on the performance order where the plaintiff specifies the object, act, and counterparty sought in the prayer for relief and satisfies the requirements for judicial protection of the chosen form of action. However, if the order secured stops at confirmation of a right, that stage is not reached, and where the legal interest in confirmation is not recognized, one is likewise blocked at the same place. While the materials concerning the prayer for relief of the complaint, the legal relationship to be confirmed, the present unease, and other means of relief are taken as categories, judgment is reserved where the requested order or the present legal unease is not specified. Since no real-case materials of this scene have been collected, no outcome of judgment or result of performance is asserted here.
What can be confirmed in this section is the distinction that, within the limit that the interest in confirmation is defined as the need for judicial protection in obtaining a declaratory judgment and that the mere fact of the existence of another means cannot extinguish that interest entirely, still the interest cannot be recognized on the basis of a general unpleasant feeling alone. Conversely, beyond this distinction it cannot be held that the interest in confirmation is recognized merely from the existence of a general unpleasant feeling. When a person who wants performance submits a written pleading stating only confirmation, whether that pleading is a means of protecting the right is judged only within the scope of the interest in confirmation.
2.7The Link to the Application and the Dispositive Part
On the basis of this draft alone, the existence of the unease and the appropriateness of the means to remove that unease are not determined together. This question, asking about the interest in confirmation, opens concretely in this scene.
The wording of the precedent on this question sets out the requirements for the establishment of the interest in confirmation as follows: "The interest in confirmation is recognized when obtaining a declaratory judgment is the most effective and appropriate means of removing the unease or risk presently existing in the plaintiff's right or legal status." (Supreme Court Decision 2016Da275679 decided March 15, 2018). Here the subject is the plaintiff, the object is the plaintiff's right or legal status, and the condition is that it must be the most effective and appropriate means of removing the unease or risk presently existing. The fact of unease alone does not automatically satisfy the condition stated in this wording.
What connects this wording with the conclusion of this section is the definition of the interest in confirmation. Since the need for judicial protection means a judgment of whether a declaratory judgment is an effective and appropriate means of actually removing the unease, the appeal of unease and the appropriateness of the means are examined separately. Without the former, the object of dispute is not specified; without the latter, the form of a declaratory action does not immediately lead to the need for judicial protection. Precisely because of this distinction, the interest in confirmation is placed not as a formal requirement of claim but as the need for judicial protection.
Yet the risk of unduly narrowing the inherent interest in confirmation on the ground that another means already exists remains. If the interest in confirmation is readily denied merely because the path to receiving performance is already open, or because another claim is possible, technical classification comes before the substance of the right. Without erasing such a loss, one cannot go beyond the range set by the above wording. So long as the unease stops at emotional unpleasant feeling and it is not shown that a declaratory judgment is an effective and appropriate means of removing that unease, the interest in confirmation is not recognized. The risk of narrowing pointed out by the counterargument is to be handled with care, but the interest in confirmation cannot be recognized on the basis of a general unpleasant feeling alone.
What can be confirmed in this scene is the fact that Plaintiff A's demand lies in delivery and that the wording of the draft stops at confirmation of a right. Whether the legal relationship to be confirmed is Plaintiff A's right, whether the present unease concerns the existence or nonexistence of that right, and how materials concerning other means of relief are arranged are not given as the basis of this section. Therefore, whether a declaratory judgment is the effective and appropriate means of realizing the demand for delivery, or whether the unease is removed by confirmation alone, cannot be determined at the present stage. That the judgment of the possibility of a performance order is redone if a claim seeking only confirmation is converted into a lawful claim for performance is merely a change of condition placed within the scope of this section, not a fact of the scene.
What this section permits is the judgment that the interest in confirmation is recognized only where a declaratory judgment is the effective and appropriate means of removing the unease in the present right or status. The conclusion that a declaratory action is permitted on the basis of the existence of unease alone, or the conclusion that the interest in confirmation is denied on the basis of the existence of another means alone, falls outside the scope of this section. In the scene where the demand for delivery and the draft of confirmation diverge, the final judgment depends on the remaining materials.
2.8The Scope This Section Undertakes
The term interest in confirmation refers to the need for judicial protection in obtaining a declaratory judgment. The conclusion of the preceding analytical step carries over only to this: the desired performance must be claimed by including it in the order, and the court may not add on its own any relief that has not been requested. Under these conditions, the question now presented is whether every unease can be resolved by a declaratory action.
The precedents on actions for confirmation set down the wording as follows. "An interest in confirmation is recognized when obtaining a declaratory judgment is the most effective and appropriate means of removing the unease or risk that currently exists in the plaintiff's rights or legal status" (Supreme Court Decision 2016Da275679 decided March 15, 2018). Here the subject is the plaintiff seeking confirmation, the object is the plaintiff's rights or legal status, and the condition is that there must exist an unease or risk in those rights or status. What the judgment confirms is this wording itself, and applying that wording to the present question is the author's work.
This wording requires that two steps be distinguished. First, one examines whether there is an unease in the rights or status, and second, one examines whether a declaratory judgment can be singled out as the most effective and appropriate means of removing that unease. The reason interest in confirmation is the need for judicial protection in obtaining a declaratory judgment is that, without undergoing the procedure of confirming whether the judgment is an appropriate means for removing the unease, the need for judicial protection cannot be satisfied.
The counterargument most strongly raised against this distinction is the concern that the inherent interest of confirmation may be narrowed too far on the ground that another means exists. If the form of the claim is overemphasized, technical classification takes precedence over the substance of the right, so that a person actually experiencing unease may be blocked at the door of relief; in that respect, this counterargument contains a valid concern. Even so, the author's conclusion does not waver, because an interest in confirmation cannot be recognized on the strength of a general sense of discomfort alone. Attending to the substance of the unease is distinct from opening the door merely on the strength of the name of unease.
The facts corresponding to the interest in confirmation in the synthetic scene are that Plaintiff A wants delivery of the thing promised by Defendant B, while the draft states only a confirmation that a right exists. The gap between the plaintiff's wish for the performance of delivery and the claim for relief that sought only confirmation marks the place of the present issue. Whether the thing, act, and counterparty demanded have been specified in the claim for relief, and whether the confirmation now written leads to an order securing the performance of delivery, remain matters for the records of the complaint's claim for relief and the legal relationship to be confirmed. Other values, such as a period or an amount, are not fixed in the scene and therefore are not included in the judgment. Accordingly, what order will actually be issued cannot be determined from this scene alone.
The path on which an interest in confirmation is recognized opens when a declaratory judgment can be singled out as the most effective and appropriate means of removing an existing unease or risk. Conversely, where there is no need for judicial protection in seeking confirmation, or where the matter could be addressed by demanding another order but the claimant adheres only to confirmation so that the performance of delivery does not enter the order, the desired change cannot be carried into a judgment through this path. However, where the materials are insufficient and the order demanded or the present legal unease is not specified, the matter remains undetermined; it is not immediately adjudged to be a failure of relief.
2.9Application of the Text of the Provisions and the Holdings of Precedents
Where, as here, the relief contained in the claim for relief diverges from the performance actually desired, how does the wording of Supreme Court Decision 2016Da275679 decided March 15, 2018 bear on the determination of whether that claim can be admitted or not? This question concerns not the existence of the right itself, but the adjudication of the necessity of receiving that order.
The source text corresponding to this problem lies in Summary of Decision [1]. Its wording is that an action for confirmation must have, as a requirement for judicial protection, an interest in confirmation, and that an interest in confirmation is recognized when obtaining a declaratory judgment is the most effective and appropriate means of removing the unease or risk that currently exists in the plaintiff's rights or legal status (Supreme Court Decision 2016Da275679 decided March 15, 2018, Summary of Decision [1]). The subject this wording defines is the plaintiff who brought the action for confirmation, the act is claiming a declaratory judgment, and the condition is that the declaratory judgment becomes the most effective and appropriate means of removing that unease or risk. The source text at issue is limited to this wording in Summary of Decision [1].
The connection between this wording and the judgment based on it is divided by the fact that they occupy different stages. The wording requires, as a requirement for judicial protection, the interest in confirmation, that is, the need for judicial protection in obtaining a declaratory judgment. And only after this requirement has been met does the question arise of how closely the order claimed in that action matches the performance demanded. The reason the preceding stage and the later stage must be kept apart is that the wording places the existence or non-existence of the interest in confirmation before the question, and places its criterion of determination in the effectiveness and appropriateness of the declaratory judgment as a means of removing the existing unease or risk. As defined by the author, interest in confirmation means the need for judicial protection in obtaining a declaratory judgment, and the reasoning of the judgment and its other parts do not enter as grounds for this determination.
This narrow criterion of determination entails a cost. The inherent interest of confirmation may be narrowed too far on the ground that another means exists. In the case of a plaintiff who wishes delivery of a thing but has written in the claim for relief only a confirmation that the right exists, the statement that there is no interest in confirmation because another means of relief already exists produces the result of technically barring the plaintiff's way to protection. The form of the claim may come before the substance of the right. Because the source text at issue requires the removal of an existing unease or risk, the mere expression of unease cannot be taken as satisfying that condition.
The materials for applying this determination are those concerning the complaint's claim for relief, the legal relationship to be confirmed, the current unease, and other means of relief. However, this scene has fixed only the fact that the claim for relief in the draft contains confirmation alone, and has provided no materials as to what the thing agreed with B is, what the specific content of the current unease is, or whether another means can be used. Accordingly, from this scene alone it cannot be determined whether an interest in confirmation is recognized. This is undetermined, and it does not mean that the action for confirmation has immediately lost its way.
The conclusion permitted in this section is that, for this question standing at the entrance of a claim seeking an order of performance of the demanded performance, only the wording of the source text at issue is used as the basis for the determination, and that within that scope the interest in confirmation is applied as a requirement. What is not permitted is to add reasons beyond the wording so as to prejudge the possibility of a performance order, or to deny the plaintiff's right itself on the ground that the interest in confirmation is lacking. Taking the reasoning of the judgment and its other parts as grounds for expansion also lies outside this scope.
2.10Fine Distinctions Within the Stage
In this state, the question is which part, within the entrance of a claim seeking an order of performance of the demanded performance, is to be separated out for determination.
The source wording that grounds the treatment of this problem concerns the interest in confirmation. Supreme Court Decision 2016Da275679 decided March 15, 2018 sets forth the interest in confirmation as follows: "An action for confirmation must have, as a requirement for judicial protection, an interest in confirmation, and an interest in confirmation is recognized when obtaining a declaratory judgment is the most effective and appropriate means of removing the unease or risk that currently exists in the plaintiff's rights or legal status." Here the subject is the plaintiff, and the object of determination is the unease or risk currently existing in the plaintiff's rights or legal status. The act is obtaining a declaratory judgment, and the condition is the case where that is the most effective and appropriate means of removing that unease or risk.
This wording defines the interest in confirmation as the need for judicial protection in obtaining a declaratory judgment. Whether the performance one seeks to secure has been included in the claim for relief, and whether an existing unease can be removed by a declaratory judgment, are separate stages of determination. The former governs the premise set out that the desired performance must be included in the order, and the latter governs the requirement for judicial protection called interest in confirmation. If these two are not separated, the work of clarifying the scope of the requested relief becomes mixed with the work of deciding whether the requested confirmation is in fact a means of removing that unease.
The counterargument this distinction is aimed at is that, if the form of the claim is overemphasized, technical classification takes precedence over the substance of the right. The observation that the inherent interest of confirmation may be narrowed too far on the ground that another means exists comes from the same direction. This loss and inconvenience are real, and the favorable part of the counterargument is not erased. An interest in confirmation is recognized only when the plaintiff's unease is specified as the unease or risk of an existing right or legal status, and when a declaratory judgment is the most effective and appropriate means of removing it.
In this scene, Plaintiff A demanded delivery while the draft stated only a confirmation that a right exists. On this fact alone, the demanded order has not been specified, and so at the entrance of a claim seeking an order of performance, confirmation falls in the undetermined case. On the other hand, it falls respectively in the case that is blocked, if the materials concerning the legal relationship to be confirmed, the current unease, and other means of relief support the interest in confirmation, and in the case that operates, if the thing, act, and counterparty demanded are specified in the claim for relief and the requirements for judicial protection of the chosen action are satisfied. The year, amount, time limit, or actual result of performance that cannot be determined from this scene remains undetermined.
Accordingly, the detailed subdivisions within the stage are limited to the conditions written as the case that operates, the case that is blocked, and the case that is undetermined, and no new stage is created for determination. That said, this does not mean that the interest in confirmation has been determined and applied to an actual case, nor that the outcome of any lawsuit or the result of performance has been determined. Only the definition that the interest in confirmation means the need for judicial protection in obtaining a declaratory judgment, and this conditional distinction, are the conclusion of this section.
2.11Synthesis of Effectiveness, Blockage, and Undetermination
The preceding analysis has already made clear that merely speaking of unease does not settle which judgment will remove that unease. On this premise, the scene may be recalled in which Plaintiff A wants delivery of the thing promised by Defendant B, while the draft states only a confirmation that a right exists. The performance the plaintiff truly wishes for and the order of confirmation written in the document differ in content. In this scene, when does the entrance of a claim seeking an order of performance of the demanded performance open, when is it blocked, and when must the determination be postponed?
To answer this question, one must first read directly the wording of the source that has taken up the grammar of the declaratory action. Supreme Court Decision 2016Da275679 decided March 15, 2018 places the interest in confirmation as the requirement for judicial protection in the action for confirmation, and sets forth that this interest is recognized in that "an action for confirmation must have, as a requirement for judicial protection, an interest in confirmation, and an interest in confirmation is recognized when obtaining a declaratory judgment is the most effective and appropriate means of removing the unease or risk that currently exists in the plaintiff's rights or legal status." This wording defines, respectively, the subject required to have the interest in confirmation as the plaintiff, the object of determination as the plaintiff's rights or legal status, and the condition of its formation as the criterion of being the most effective and appropriate means of removing the existing unease or risk. Here only these three elements indicated by the wording are addressed, and other issues arising in the action for confirmation are set aside.
Connecting the criterion set by the above wording with the conclusion of this section, three entrances are divided at different stages. Interest in confirmation means the need for judicial protection in obtaining a declaratory judgment; this does not mean the possibility of actually obtaining the performance, but is a question of whether there is a need to settle the state of rights by judgment within the form of the chosen action. The case in which the thing, act, and counterparty demanded are specified in the claim for relief and the requirements for judicial protection of the chosen action are satisfied is the side that opens in operation, and the case in which one desires a performance but the order obtained stops at confirmation of a right, or in which no legal interest in confirmation is recognized, is the side that is blocked. If the demand for performance and the request for confirmation are read together as one stage, the error arises of applying these two conditions in place of each other.
A counterargument is aimed at this distinction to the effect that, even so, the inherent interest of confirmation must not be narrowed too far merely because another means exists. This counterargument points out that, the moment the existence of another means of relief, such as an action for performance, is taken as a ground for denying the interest in confirmation, technical classification of the claim takes precedence over the substance of the right, and the plaintiff who is actually beset by unease is pushed out at the door of relief. The author answers without erasing this unfavorable part. The criterion of the precedents is that the declaratory judgment must be the most effective and appropriate means of removing the existing unease or risk, and under that criterion an interest in confirmation cannot be recognized on the strength of a general sense of discomfort alone. This is why a concrete unease or risk adhering to the plaintiff's rights or legal status is required.
Returning to the synthetic scene, Plaintiff A wants delivery of the thing promised by Defendant B, but the draft states only a confirmation that a right exists. On this fact alone, an area of the undetermined remains. Whether the demand specified in the claim for relief is a confirmation of a right or a performance order for delivery of a thing appears to diverge from the wording of the draft, and the materials also do not show what the plaintiff's present legal unease is specified as. It has only been settled that what is to serve as the record for judgment are the materials concerning the complaint's claim for relief, the legal relationship to be confirmed, the current unease, and other means of relief; the record itself has not been filled in. This is why the case in which the demanded order or the present legal unease is not specified is classified as undetermined, and the circumstance that the materials are insufficient does not immediately move the matter to a failure of relief.
What this section permits is dividing the entrance of a claim seeking an order of performance of the demanded performance into the operating, the blocked, and the undetermined, and judging accordingly; it is not determining the outcome of any lawsuit or the actual result of delivery. A claim that desires a performance but obtains only confirmation of a right stands on the side of the blocked, and if it cannot be grasped what is to be confirmed and what the unease is, it stands on the side of the undetermined.
2.12Conclusion Carried Over to the Next Section
이렇게 확인만 담은 청구가 원고가 겪는 불안을 실제로 가라앉힐 수 있을까, 아니면 불안의 표현만 늘어나는가. 지금의 물음은 불안을 사정으로 내세우는 모든 청구를 확인소송으로 풀어도 되는지이다.
확인의 이익의 판단 기준을 대법원은 이렇게 제시했다. 대법원 2018. 3. 15. 선고 2016다275679 판결의 판결요지 [1]은 “확인의 소에는 권리보호요건으로서 확인의 이익이 있어야 하고, 확인의 이익은 확인판결을 받는 것이 원고의 권리 또는 법률상의 지위에 현존하는 불안·위험을 제거하는 가장 유효적절한 수단일 때에 인정된다”고 밝힌다. 이 문언은 확인의 이익을 권리보호요건으로 부르며, 대상은 원고의 권리 또는 법률상의 지위에 이미 존재하는 불안·위험으로 한정한다. 그리고 기준은 그런 불안을 없애는 가장 유효적절한 수단인지에 둔다.
이 정의와 판례의 문언을 떼어 놓을 수 없는 것은 둘 다 “확인판결”과 “권리보호”를 축으로 하기 때문이다. 저자는 그 문언을 받아들이면서, 불안을 호소하는 사정만으로는 확인의 이익이 따라오지 않는다고 본다. 즉 불안이 어디에 있는지와 그것을 없애는 데 확인판결이 무엇을 하는지를 묻는 단계가 먼저이고, 뒤에야 다른 수단과 비교하는 단계가 온다. 두 단계를 뒤섞면 권리의 실질을 헤아리기도 전에 소의 형태를 분류하는 것으로 끝난다.
이 구별은 다른 수단이 있다는 까닭만으로 확인의 고유한 이익을 지나치게 좁히려는 시도를 막는다. 확인은 급부를 받는 판결과 달리 지금 존재하는 법적 지위를 확정해 불안을 떨쳐내는 일을 맡으므로, 대체 수단이 눈에 띈다는 사정이 곧 확인의 이익을 없애지 않는다고 보아야 한다. 그렇더라도 저자는 일반적 불쾌감만으로 확인의 이익을 인정할 수는 없다고 못 박는다. 불안이 원고의 권리 또는 법률상의 지위라는 자리에 걸려 있고, 확인판결이 그 불안을 제거하는 유효적절한 수단이 되는 때에만 확인의 이익이 인정된다는 판례의 문언이 그 경계이다.
합성 장면으로 돌아오면, 원고 A가 겪는다고 말하는 것은 초안의 확인만으로는 어디에 붙어 있는지 드러나지 않았다. 원하는 것이 피고 B로부터 약정한 물건의 인도라면, 그 인도를 요구하는 주문이 청구취지 안에 특정되어야 요구한 급부를 명하는 청구의 입구에 선다. 그런데 초안은 권리가 있다는 확인만 담았고, 물건·행위·상대방이 급부의 주문으로 들어가지 않았다. 이 장면만으로는 A가 겪는 불안이 현재의 권리 또는 법률상의 지위에 걸려 있는지, 확인판결이 그 불안을 없애는 유효적절한 수단인지가 확인되지 않는다. 장면이 확인해주지 못하는 것은 미확정으로 남는다.
그래서 이 절이 끌어내는 것은, 불안을 말한다는 사정만으로 확인소송의 문이 열린다는 결론이 아니라, 확인의 이익이란 판결로 무엇을 없앨 것인지를 묻는 권리보호의 필요라는 좁은 결론이다. 그렇게 주문을 바꾸는 검사는 지금의 확인소송을 만능으로 여기는 유혹을 건너는 바로 그 자리에 놓인다. 다만 법률관계를 증명하는 서면의 진정 여부를 다투는 경우에는 민사소송법 제250조의 특별 규정에 따른 별도의 검토가 이어진다.