병합형태의 착오를 간과한 경우의 효과

This article analyzes the scope of appeal and the scope of appellate court review in cases where the trial court overlooked an error in the form of consolidation - that is, where the plaintiff chose an incorrect form of consolidation - when rendering its judgment. The Supreme Court decision 2005Da51495 (delivered on December 11, 2008) addressed a case where the plaintiff initially chose selective consolidation at the trial court for independent claims that should have been joined by cumulative consolidation, and later attempted to change it to provisional consolidation at the appellate court. The trial court, without correcting the form of consolidation, fully accepted Claim A and made no determination on Claim B, reasoning that since Claim A was fully accepted, there was no need to examine Claim B. When only the defendant appealed, the appellate court in its conclusion reversed the trial court’s decision and dismissed Claim A without making any determination on Claim B, while stating in its reasoning that Claim B could not be consolidated as a provisional claim to Claim A. The plaintiff then filed an appeal to the Supreme Court. The Court held that since the form of consolidation cannot be transformed into a proper selective or provisional consolidation relationship, only Claim A was transferred to the appellate court while Claim B remained in the trial court. Furthermore, the Court ruled that, since Claim B was not transferred to the appellate court and the plaintiff’s change of consolidation form from selective to provisional consolidation at the appellate court constituted a modification of claims adding Claim B as a provisional claim to Claim A, and since Claim B had no logical connection to Claim A and thus could not be consolidated as a provisional claim, the plaintiff was not permitted to modify their claims by adding Claim B as a provisional to Claim A in the appellate court. This decision adopts an objective approach, holding that when an error in the form of consolidation is overlooked, the scope of appeal is determined by the nature of the relationship between the claims rather than the plaintiff’s intention. It also takes the position that proper selection of the form of consolidation is a requirement for claim modification. However, the objective approach taken by this decision often contradicts the principle of party disposition and is inefficient in terms of judicial economy. Therefore, it would be more appropriate to determine the scope of appeal based on the plaintiff’s intention (subjective approach). Under the subjective approach, Claim B would also be considered transferred to the appellate court. Furthermore, since the proper selection of consolidation form should be considered neither a requirement for claim consolidation (original consolidation) nor for claim modification (subsequent consolidation), the validity of this decision is questionable.