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A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive adjudication by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute (subject to any appeal).〔28 U.S.C.S. § 2201 (“Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.”)〕 The declaratory judgment is generally considered a statutory remedy and not an equitable remedy in the United States,〔''Gulfstream Aerospace Corp. v. Mayacamas Corp.'', 485 U.S. 271, 310 (1988) (“Actions for declaratory judgments are neither legal nor equitable”).〕 and is thus not subject to equitable requirements, though there are analogies that can be found in the remedies granted by courts of equity.〔''Samuels v. Mackell'', 401 U.S. 66, 70 (“Although the declaratory judgment sought by the plaintiffs was a statutory remedy rather than a traditional form of equitable relief, the Court made clear that a suit for declaratory judgment was nevertheless ‘essentially an equitable cause of action,’ and was ‘analogous to the equity jurisdiction in suits quia timet or for a decree quieting title.’”) (citations omitted)〕〔''Green v. Mansour'', 474 U.S. 64, 72 (1985) (“The propriety of issuing a declaratory judgment may depend upon equitable considerations”).〕 A declaratory judgment does not by itself order any action by a party, or imply damages or an injunction, although it may be accompanied by one or more other remedies. The declaratory judgment is distinguished from another important non-monetary remedy, the injunction, in two main ways. First, the injunction has, and the declaratory judgment lacks, a number of devices for managing the parties. Second, the declaratory judgment is sometimes available at an earlier point in a dispute, because it is not subject to the equitable ripeness requirement.〔 A declaratory judgment is generally distinguished from an advisory opinion because the latter does not resolve an actual case or controversy. Declaratory judgments can provide legal certainty to each party in a matter when this could resolve or assist in a disagreement. Often an early resolution of legal rights will resolve some or all of the other issues in a matter. A declaratory judgment is typically requested when a party is threatened with a lawsuit but the lawsuit has not yet been filed; or when a party or parties believe that their rights under law and/or contract might conflict; or as part of a counterclaim to prevent further lawsuits from the same plaintiff (for example, when only a contract claim is filed, but a copyright claim might also be applicable). In some instances, a declaratory judgment is filed because the statute of limitations against a potential defendant may pass before the plaintiff incurs damage (for example, a malpractice statute applicable to a certified public accountant may be shorter than the time period the IRS has to assess a taxpayer for additional tax due to bad advice given by the C.P.A.). Declaratory judgments are authorized by statute in most common-law jurisdictions. In the United States, the federal government and most states enacted statutes in the 1920s and 1930s authorizing their courts to issue declaratory judgments.〔See Declaratory Judgment Act, 28 U.S.C.S. § 2201〕 ==Cease and desist== The filing of a declaratory judgment lawsuit can follow one party sending a cease-and-desist letter to another.〔http://home.comcast.net/~jlw28129/05Harvey-Appel.pdf〕 A party contemplating sending such a letter risks that the recipient, or a party related to the recipient (such as a customer or supplier), may file for a declaratory judgment in their own jurisdiction.〔See http://www.houstoninternetlaw.com/Cease%20and%20Desist.html; http://ocpatentlawyer.com/cease-and-desist-letters/. But see http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202492338347&slreturn=1〕 This may require the sender to appear in a distant court, at their own expense. So sending a cease-and-desist letter presents a dilemma to the sender, as it would be desirable to be able to address the issues at hand in a candid manner without the need for litigation. Upon receiving a cease-and-desist letter, the recipient may seek a tactical advantage by instituting declaratory-judgment litigation in a more favorable jurisdiction.〔See http://www.houstoninternetlaw.com/Cease%20and%20Desist.html; http://ocpatentlawyer.com/cease-and-desist-letters/〕 Sometimes the parties agree in advance of discussions that no declaratory-judgment lawsuit will be filed while the negotiations are continuing. Sometimes a lawsuit is filed, but not served, before sending such a notice, to preserve a jurisdiction advantage without engaging the judicial process fully. Some parties send cease-and-desist letters that make "an oblique suggestion of possible infringement" to lower the risk of the recipient filing a declaratory-judgment lawsuit. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Declaratory judgment」の詳細全文を読む スポンサード リンク
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