순위를 붙인 단순병합 허용여부 -대법원 2021. 5. 7. 선고 2020다292411 판결을 소재로-

Abstract

When claims are merged, legal differences exist in many areas depending on the aspect of the merger. It is therefore very important to distinguish the aspects of the merger. However, in litigation practice, there are many cases in which the plaintiff assigns the trial order regardless of the relevance or compatibility between the claims. In this case, our court has applied the same juridical principle as the preliminary merger, calling it the so-called untrue preliminary merger in the case of ordering the claims in the selective merger relationship. However, in the simple merger case, the jurisprudence of preliminary merger was not applied even if the plaintiff assigned an order of judgment. However, the Supreme Court(sentenced on May 7, 2021, 2020Da292411) ruled that the untrue preliminary merger is possible even in a simple merger case. In other words, the damage item is regarded as a simple merger of three claims in practice. However, it was said that even if the plaintiff circumstantially claims property damages and, if the damages are not acknowledged, preliminary claims for mental damages of the same amount, untrue preliminary merger is allowed. Therefore, it can be interpreted that the legal principle of preliminary merger can be applied even when the order is given to claims in a simple merger relationship. This is significant in that it opened the door to a discussion that even if there is a simple merger relationship, if there is relevance between the claims, the legal principle of untrue preliminary merger may be applied in consideration of the plaintiff's intention.