예비적 ․선택적 공동소송의 허용여부와 이중패소의 위험(대상판례 : 대법원 2007. 6. 26.자 2007마515 결정)

Abstract

The purpose of Conjunctive․Alternative Joinder is to prevent inconsistent ruling if the claims which are closely-related and therefore dismissal of a claim should logically lead to an acceptance of the other claim, were filed in separate litigation procedures. Conjunctive․Alternative Joint Litigation is allowed only under the concrete requirement that the claims should be decided in a single procedure without contradictory decision as this form of litigation is to settle a legal dispute between multiple litigants without contradiction in a single procedure. In the present case, it is obvious that not the individual member, but the association of residents itself holds the defendant’s standing to be sued. Therefore if plaintiffs file a suit against the association after their suit against an individual member is dismissed, it is of no possibility for a court to make a ruling that the association of residents does not possess defendant’s standing to be sued. Therefore if plaintiffs file a suit against the association after their suit against an individual member is dismissed, it is of no possibility for a court to make a ruling that the association of residents does not possess defendant’s standing to be sued (and it is of no possibility for a court to dismissed both suits if the plaintiffs file the both separately at the same time). Though the court laid a milestone by presenting a new interpretation of “Legally Incompatible”,its acceptance of plaintiff’s request on the Subjective․Conjuctive Joint Litigation seems inadequate enough to draws predictable criticism.