의사표시의 진술을 구하는 소송의 소의 이익 –대판 2016. 9. 30. 2016다200552 –·

초록

The precedent taken up in this study is that request for declaration of intention is interpreted as having no interest of action. It can be said that this case is judgment based on common sense. This is because the court does not have to make a judgment on this matter unless there is any interest in the winning judgment that plaintiff obtains. This study is considering an exceptional interpretation of the case that there is no interest of action in this request. The order of discussion first analyzes judicial precedents. Next, I introduce the theory and then write my opinion with reference to Japanese precedents and theories with a similar judicial system. It is difficult to agree with the interpretation that the case should be dismissed because there is no actual benefit in action for performance. That the court pre-paid an action for reasons interest of action is not useful for the growth of people's rights. Whether or not such claim right is profitable should, in principle, be left to the parties as an subject merit problem. In conclusion this study presented a conclusion against the interpretation of the case.

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