(영문) 대법원 2015.5.28.선고 2015다202728 판결

1. Although a lawsuit for confirmation does not necessarily have a legal relationship between the parties, but can also be the object of the legal relationship between one party and a third party or between third parties. However, in order for the other party to have a benefit of confirmation of such legal relationship, there is any danger or incompetence existing in the Plaintiff’s rights or legal status and there is a need to immediately confirm the legal relationship in order to eliminate the danger and apprehension, and it should also be the most effective and appropriate means. Furthermore, the other party who denies his/her rights or legal status claims the rights or legal relationship against a third party that cannot be compatible with his/her own assertion and seek confirmation of the absence of the other party’s rights or legal relationship with the other party’s assertion. Even if the lawsuit for confirmation was rendered in favor of the other party, it does not have a right to the other party, and such lawsuit for confirmation of non-existence does not have a benefit of confirmation because it cannot be a valid and adequate means to resolve the existing apprehension and danger in his/her own rights or legal status (see, e.g., Supreme Court Decision 2003Da413694.

2. According to the reasoning of the lower judgment and the record, the Plaintiff’s claim of this case against the Defendant disputing the instant shares on the ground that the instant shares, among the shares issued by D (hereinafter “D”) belong to the Plaintiff, is seeking confirmation of the absence of the Defendant’s shareholder status as to the instant shares.

However, in light of the above legal principles, the lawsuit of this case seeking confirmation against the defendant that the plaintiff is not seeking confirmation that the status of the shareholder with respect to the shares of this case is actively against the defendant, but rather seeking confirmation that the status of the shareholder with respect to the shares of this case is not borne by the defendant. Even if the plaintiff was awarded a favorable judgment against the defendant, the plaintiff's right to the defendant does not become final and conclusive due to the judgment, and its effect does not affect D. Therefore, the lawsuit of this case cannot be an effective and appropriate means to solve the present risk and apprehension in the plaintiff's rights or legal status, and thus, it is unlawful as there is no benefit of confirmation. Nevertheless, the court below held the lawsuit of this case lawful. Thus, the court below erred in the misapprehension of legal principles as to

3. Therefore, without examining the grounds of appeal, the judgment of the court below is reversed without further proceeding to decide on the grounds of appeal, and this case is sufficient to be directly tried by the court, and 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 plaintiff. It is so decided as per Disposition by the assent