확인소송원형관의 현대적 변용

Abstract

In terms of history, it couldn’t be denied that the three type of lawsuit(coercive-, declaratory-, constitutive remedy) were recognized as independent needs in the development process of Civil Procedure, and current practice is also based on the independence between types.
 However, the theory that a declaratory remedy is a basic form of all lawsuits is theoretically valid to some extent in that all three types of the above lawsuit confirm the existence of rights and that the effect of the judgment has res judicata.
 Although modern and general confirmation litigation was established in Germany in the 19th century, its origins go back to Roman law, and it is a system that has developed in line with the needs of the times. In addition, it is necessary to take into account that in modern society, a declaratory remedy can play more diverse functions and roles in the conflict between various values and interests and the relief of the parties' rights.
 As such, if a declaratory remedy is a product of historical development, there is a need to develop and transform it to suit the needs of modern society.
 In seeking to expand the scope of relief for the parties' rights and at the same time rationalize the procedure, it is necessary to actively consider that a declaratory remedy is the basic or prototype of all lawsuit. Accordingly, in cases where it is more appropriate to resolve disputes, the responsibility and role of implementation shall be divided and supplemented or replaced. In designing more effective remedies in modern litigation, it is considered desirable to actively utilize the confirmation action as the basic or first step procedure.