Whether or not a request for confirmation can be made even if it is possible to claim payment

Even though the claim for performance can be filed immediately, allowing the claim for confirmation of existence of the claim for performance itself is not effective in removing anxietys and it is not permissible in light of the economic nature of the lawsuit.

Article 228 of the Civil Procedure Act

Plaintiff (Counterclaim Defendant)

Han River Farmland Improvement Association (Attorney Lee Jae-ho, Counsel for defendant-appellant)

Seoul Civil District Court Decision 79Na489 (Main Office), 79Na490 (Counterclaim) decided November 23, 1979

The part concerning the principal lawsuit in the original judgment shall be reversed, and that part shall be remanded to the Panel Division of the Seoul Civil Procedure District Court.

The appeal on the counterclaim part is dismissed.

The costs of appeal against a counterclaim shall be borne by the defendant.

The grounds of appeal are examined.

According to the reasoning of the judgment and the records, the court below rejected the defendant's assertion that, at the beginning of April 1925, 1925, the Bupyeong Repair Cooperative, a telegraph of the defendant, purchased the above defendant's purchase of land from April 20, 1925 to his legal representative's mother who was a minor, and constructed the land category as a ditch, and occupied and used it as a base for agricultural liver players for 20 years after the peace and public performance as owned by the defendant. However, even though the defendant asserted that the prescriptive acquisition was completed by the witness's testimony on April 20, 1945 as part of the argument, the witness's testimony was recorded several times in the column of the former land cadastre due to the reasons for the preservation and transfer of ownership from the original owner's land in the name of the plaintiff's land cadastre, and it did not believe that the above defendant's purchase was cancelled as a material to recognize the purchase and there was no other defendant's purchase. Furthermore, if this fact was in fact, it cannot be viewed that the defendant's possession of land as a title.

In light of the records, the above determination of the court below is just, and there is no error in the judgment of evidence such as the theory of lawsuit, or in the judgment of evidence evidence, it deviates from the scope of the free evaluation of evidence, or there is no incomplete hearing or lack of reason or any other illegality.

The defendant's argument as the ground of appeal is without merit, except for the part of judgment as to the main claim, ex officio.

However, it can be seen ex officio as to the claim of the plaintiff.

According to the judgment of the court below, the facts that the land of this case has been registered for ownership transfer in the plaintiff's future and the facts that the defendant occupied and used the land of this case from around 1961 to the date of the dispute between the parties. The above land is presumed to be owned by the plaintiff, and barring special circumstances, barring any special circumstance, the defendant occupied the above land from January 1, 1970 to November 9, 1979, which is the date of the closing of argument in this case, without legal cause, and gained profits equivalent thereto, and the plaintiff was liable to return this amount to the plaintiff. Further, in this case where the plaintiff had a claim for return of unjust enrichment due to possession without title to the above land, and the defendant argued for this, even if the amount of the claim is not determined, the plaintiff must accept the plaintiff's claim for return of unjust enrichment from March 25, 1969, and confirmed that the plaintiff's claim for return of unjust enrichment against the defendant from January 19, 197.

Therefore, it is reasonable to examine whether the lawsuit seeking confirmation of the above contents is the benefit of confirmation.

In a lawsuit for confirmation at this time, the benefit of confirmation is generally required as a requirement for the protection of rights. The benefit of confirmation is recognized only when the plaintiff's right or legal status is currently unstable, dangerous, and the removal of such apprehension and danger is the most effective and appropriate means to be judged. Thus, the issue here is raised in this context. There may be conflicting opinions as to whether the claim for confirmation can be allowed, but even though the claim for confirmation of the existence of the right to claim for payment can be immediately filed, allowing the claim for confirmation of the existence of the right to claim for payment is not effective in the removal of apprehension and cannot be acknowledged as an effective and appropriate means, in light of the litigation economy.

In the case of this proposal, since the claim for return of unjust enrichment as of the date of possession without title for the past period can be determined in the amount of the claim, and since the due date has already arrived, the claim for payment can be immediately determined and the claim for confirmation of existence of the claim for which the amount of the claim is not determined specifically and specifically, barring special circumstances, cannot be deemed as a fundamental dispute resolution without the claim for payment. Therefore, it is reasonable to view that the claim for confirmation, such as the original judgment, cannot be permitted because there is no benefit of immediate confirmation.

The judgment cited by the original judgment has become final and conclusive that there exists a claim for compensation, but the amount has not yet been determined and thus, when the other party contests the existence of the claim for compensation in a situation where it is not possible to immediately demand performance by law, there is a benefit to immediately determine the existence of such claim, and thus,

Therefore, the part of the judgment on confirmation of the plaintiff's claim in the original judgment shall be reversed to correct it.

Therefore, the part concerning the principal lawsuit in the original judgment shall be reversed, and this part shall be deliberated again, and the appeal on the counterclaim part shall be dismissed, and the appeal on the counterclaim part shall be assessed against the defendant, and it is so decided as per Disposition with the assent of all participating judges who decide on the

Justices Jeong Tae-won (Presiding Justice)