병합형태의 착오

Abstract

This paper is an analysis of the Supreme Court’s judgment on May 29, 2014(2013DA96868). In this judgment, the Supreme Court stated that whether the type of consolidation is selective or provisional should be determined based on the nature of the relationship between consolidated claims, not the plaintiff’s intent; that although the plaintiff chose provisional consolidation, considering the nature of the relationship between the claims in this case, these claims are in a selective relationship; therefore, the court should adjudicate these claims through selective consolidation. The above ruling is evaluated as taking a negative stance on whether provisional consolidation is permissible for claims that are in a selective relationship. Scholarly opinions on this issue are divided into the affirmative view, the negative view, and the compromise view and the Supreme Court has also issued conflicting rulings on this matter. The affirmative view is worthy of support considering the fact that there are no significant problems when the court adjudicates claims that are in a selective relationship through provisional consolidation and the ambiguity of the “reasonable necessity” required by the compromise view. The error in the type of consolidation refers to a situation where a discrepancy occurs between the plaintiff’s intent regarding the type of consolidation and the nature of the relationship between claims. In cases where there is an error in the type of consolidation, there are different opinions on how the court should adjudicate. These include the view that the court should follow the plaintiff’s intent, the view that it should adjudicate according to the nature of the relationship of the claims, the view that it should adjudicate the claims separately for the requirements for consolidation is lacking, and the view that the lawsuit should be dismissed due to reasons such as the overall ambiguity of the plaintiff’s claims and the violation of party autonomy. The last view is worthy of support. However, even when following the last view, there can be exceptions in certain cases where it may be permissible to follow the plaintiff’s intent. The situation that was at issue in the above Supreme Court case, where the plaintiff opted for provisional consolidation for claims in a selective relationship, is a prime example of such exceptions.