2012Da101718 Confirmation of the existence of abandonment

1. A;

2. B

3. C.

4. D;

E

Seoul High Court Decision 2012Na20767 Decided October 11, 2012

January 29, 2015

The judgment of the court below is reversed.

The judgment of the first instance is revoked, and the lawsuit of this case is dismissed. All costs are borne by the plaintiffs.

Judgment ex officio is made.

1. A lawsuit for confirmation is not necessarily limited to a legal relationship between the parties, but can be subject to the legal relationship between one of the parties and a third party or between third parties. However, in order to have a benefit to seek confirmation of such legal relationship, there is a need to immediately confirm the legal relationship in accordance with the legal relationship in order to eliminate the risk and non-performance caused by existing risk and non-existence of the claimant's rights or legal status, and it should be the most effective and appropriate means by the judgment for confirmation of the legal relationship. In addition, the other party asserts the rights or legal relationship against a third party that cannot be compatible with his/her own claim and seeks confirmation that the other party's rights or legal relationship against the third party are nonexistent. Even if a judgment is rendered in the lawsuit for confirmation, it does not become final and conclusive in relation to the other party, but it does not affect the third party, and thus, the lawsuit for non-existence cannot be a valid and appropriate means to resolve the existing risk and danger in his/her own rights or legal status (see, e.g., Supreme Court Decision 2006Da579797, Aug.

2. According to the reasoning of the judgment below and the record, the plaintiffs' claim of this case against the defendant for confirmation of the non-existence of the status of the member of the church of this case on the grounds that the defendant's term of office as the member of the church of this case expired.

However, in light of the above legal principles, even if the plaintiffs received a favorable judgment against the defendant in this case, the judgment does not confirm any rights of the plaintiffs in relation to the defendant, and its effect does not affect the church in this case. Thus, the lawsuit in this case cannot be an appropriate means to resolve the current risks and omissions in the plaintiffs' rights or legal status, and thus, it is unlawful as there is no benefit of confirmation.

Nevertheless, the lower court determined otherwise by misapprehending the legal doctrine on the interest in confirmation, thereby making a judgment on the merits, deeming the instant lawsuit lawful.

3. Therefore, without examining the plaintiffs' grounds of appeal, the judgment of the court below is reversed, and this case is sufficient to be tried directly by the court. Thus, the judgment of the court of first instance is revoked, and the lawsuit of this case is dismissed, and the total costs of the lawsuit are borne by the plaintiffs. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim In-bok

Chief Justice Min Il-young

Justices Park Young-young

Justices Kim Jong-il