예비적 공동소송에서의 양립불가능성 -대판 2015. 6. 11. 2014다232913과 관련하여-

Abstract

Basically civil lawsuit procedure itself is not accustomed to not-fixed or conditional litigant parties because of lawsuit procedure’s safety. By the way, there had been academic disputes about preliminary joint litigation, although courts had denied that. However, the revision of the Civil Procedure Act in 2002 led to the recognition of a preliminary and selective joint lawsuit in Article 70 of the Civil Procedure Act, and as a requirement for its approval, it stipulates that "a claim by the parties or against parties is not legally compatible". However, there are still academic disputes over the meaning and scope of 'legally incompatible' as a requirement for a preliminary joint lawsuit. There is a conflict between the view that it means only cases that are incompatible by law itself and the view that they include not only legally but also factually incompatible cases. Related to this legal issue, judgement of 11 June, 2015, 2014da232913(Supreme Court of Korea) deals with this issue and confirmed that the concept of ‘legally incompatible’ in Article 70 of the Civil Procedure Act covers incompatibility in not only substantive law, but also procedural law and fact-finding. In that case, the argument was that ‘who is the operator of the ambulance? hospital? or rescue center that has signed a lease with the hospital?’ because operator of an ambulance under Article 48 of the Emergency Medical Act is responsible for violating of the obligation to board the emergency medical technician. In this study, I studied academic disputes pointing out each view’s problems and suggested better logical approach, legal interpretation and legislation. In conclusion, to summarize my opinion, ‘Applying only to incompatible provisions in substantive laws will make preliminary joint system useless because those cases are rare. Fact-finding such as determining the parties and contents of contract is mixed with legal problems, so it’s hard to distinguish between legal problem and factual problem. Many of real cases, most of plaintiffs don’t know who are ultimately legal defendants because they can’t know exact facts before suing. Narrow interpreting or applying the preliminary joint litigation code may also cause extinction prescription risk. So the Article’s legal incompatibility must cover procedural and factual cases.’