부진정 예비적 병합의 허용 요건 및 범위- 대법원 2021. 5. 7. 선고 2020다292411 판결검토를 중심으로 -

Abstract

The subject judgment stated that “even if there are several logically compatible claims, such as a claim for compensation for financial damages and a claim for compensation for mental damages of the same amount as a preliminary claim in case the amount of damages is not recognized, if ① the logical relationship is close and ② it is recognized that there is a reasonable need to file the claims in the order of trial,” the trial should be conducted according to the order of trial established by the parties, and this was called Untrue Preliminary Merger. In the past, some precedents allowed Untrue Preliminary Merger if only the above requirement ② were met, but the subject judgment is significant in that it additionally requires the above requirement ①. The above requirement ① is not simply interpreted to mean that the underlying facts of each claim must be the same, but furthermore, it is interpreted that each claim is legally or economically intended for the benefit of the same or similar. Therefore, it can be evaluated that the subject judgment has expressed that the relevance, which is a requirement for preliminary merger, is also necessary in Untrue Preliminary Merger. In addition, the above requirement ② is interpreted as a case in which several claims are not legally or economically equivalent to the plaintiff, and objectively, it can be recognized that it is more beneficial to the plaintiff to make a claim as the primary claim by attaching the order of judgment. Due to the above requirements, it should be considered that Untrue Preliminary Merger cannot be allowed for claims that are in a simple merger relationship, even if the above relevance is exceptionally recognized. In the subject judgment, it is presumed that the plaintiff merged the claim for compensation for mental damages in the same amount with the claim for compensation for financial damages based on the supplementary function of consolation money in preparation for the impossibility of determining the amount of financial damages. Therefore, the claim for compensation for financial damages and the claim for compensation for mental damages should be viewed as competing rights that mostly serve the same purpose and are in a relationship of selective merger. Therefore, it cannot be evaluated that the subject judgment allowed Untrue Preliminary Merger for claims that are in a simple merger relationship.