민사소송법 제70조 소정의 예비적･선택적 공동소송의 요건 －대법원 2007. 6. 26.자 2007마515 결정을 중심으로－

This paper is a commentary on decision of June, 26, 2007, 2007ma515(Supreme Court of Korea). In this case, the Korean Supreme Court suggests for the first time a statutory interpretation on the permissible range of “preliminary or selective co-litigation.” The judges on the Supreme Court panel explain that the concept of ‘legal incompatibility’ in Article 70 of the Civil Procedure Act includes ‘factual incompatibility’－that is, Article 70 can also be applied to cases in which any claim by a faction of the co-litigants is ‘factually’ incompatible with that of other co-litigants－and that Article 70 also covers legal incompatibility arising in both substantial law and procedural law. Therefore they judge that co-litigation should be permitted in the case because the main issue involves determining who is qualified to be a claimant, which in turn is relevant to determining legal incompatibility in procedural law. However, it is hard to agree with this decision both in terms of the reasoning process suggested in the specific case and in the interpretation on the concept of ‘legal incompatibility.’ First, regarding the reasoning process, the judges of the Supreme Court consider the case as a matter of the qualification of a claimant or of the benefit of confirmation. But a close scrutiny of the litigation process and of the facts reveals that it is more proper to approach the case from a matter of standing to abjudicate, rather than from that of conditions of lawful litigation. This paper points it out and reasons that the Supreme Court uses this case as a wrong example of legal incompatibility in procedural law. Finally, the meaning of ‘legal incompatibility’ mentioned above is too broad and abstract, so criticism that it is unhelpful in deciding whether preliminary or selective co-litigation can be permitted or not is inevitable. This paper tries to suggest a clearer interpretation on the concept of ‘legal incompatibility’,which can be summarized as follows: “it is decided according to whether incompatible situations are explicitly expected in the positive laws.” As a natural result of this new interpretation, preliminary or selective co-litigation cannot be permitted in cases where ‘factual’ incompatibility might happen.