중국의 청구권경합소송에 관한 소고

In civil cases, concurrence of claims is a considerably complex and difficult problem. Although several counties have constantly made much effort in conducting theoretical and practical research and putting their findings into practice, a complete solution has yet to be found which can ensure the complete realization and warranty of rights of right holders. Particularly in China compared with other civil law system countries, there is little shared awareness of the concurrence of claims in terms of theory, legislation, and practice. When it comes to judicial practice, extremely limited decisions, such as “alternative elimination (in which a right holder chooses and exercises one of multiple claims and the other claims are eliminated),” are made in cases of the concurrence of claims. This prevents the effective and complete warranty of the rights of right holders. This study focuses on liability for the breach of contract and liability for an illegal act, both of which are the most typical ways of the concurrence of claims among concurrence problems in the civil law. The focus on these liability types was targeted in order to first examine claims and causes of the concurrence of claims, along with response measures currently discussed or implemented in China. Subsequently, the study then suggests current problems based on the review of the legislative history, current status, and judicial practice in relation to legislation to handle the concurrence of claims. Finally, phased solutions that can be practiced in the current Chinese substantive and procedural law system are presented. The phased solutions are as follows. Specifically, the problem can be solved, (i) in the short term, by preventing double benefit risk through the recognition of right holders’ claims for multiple rights and the procedure of combining claims based on the reinterpretation of right holders’ right of choice and the judicial interpretation of the combining of claims by Supreme People's Court. The problem can be solved, (ii) in the mid- and long-term, by creating a shared awareness in terms of legal theory through the reorganization of the concept of object of action and in-depth research on the relationship between concurrent claims and making visible legislative results based on the shared awareness. The aim of this study is to act as a resource for assistance or serve as a reference for people who need to litigate to handle the concurrence of claims.