양립 가능한 청구의 예비적 병합 허용여부

Abstract

Our law recognizes the merging of claims because it would be beneficial for everyone to relate relevant claims to trial rather than claiming them separately in case of multiple claims. Merging of claims is divided into simple merger, selective merger, and preliminary merger according to its appearance, but it is indistinguishable. Particularly in cases that are compatible and need to be obtained by selective merging, the parties often rank the claims and obtain them by preliminary merging. There is a conflict of opinion as to whether this form of merging can be recognized. Our court has treated the preliminary merger by respecting the rankings of the plaintiffs in the past. But the Court has ruled in accordance with the nature of the request for merger, excluding the will of the parties in deciding the merger since the Supreme Court sentenced May 29, 2014. If plaintiffs rank compatible claims, the question of whether a court should try accordingly depends on how much private autonomy can be involved in the area that determines the form of consolidation. Under the Civil Procedure Law of the principle of disposition, we basically need to respect the intentions of the parties, unless the result is a delay in hearing or a serious disadvantage to the other party. However, since private autonomy cannot be admitted without limitation, it should be regarded as a preliminary merger if there is a need and reasonableness to respect the plaintiff’s intention in consideration of the nature of the merger claim. There is also criticism that selective consolidation delegates the right to disposition of lawsuits to the courts, which basically violates the principle of disposition. It is also important to consider the need to avoid processing with selective merging where possible. The disadvantages that the defendant may suffer in the process of preliminary merger can be resolved by the court’s proper exercise of the right to take action.