청구의 선택적·예비적 병합의 요건 재검토

Traditionally, the Supreme Court of Korea had held that concurrent claims should, as a general rule, be consolidated “alternatively”, and logically incompatible claims should be consolidated “eventually”, in accordance with the classification theory of consolidation of actions. However, when concurrent claims were consolidated eventually by the plaintiff, the Supreme Court had exceptionally treated the claim as if they were consolidated eventually and had referred to this type of consolidation as “quasi-eventual consolidation” in its judgment. Recently, however, the Supreme Court has departed from its previous approach. The Court has treated concurrent claims which consolidated eventually by the plaintiff as if they were consolidated alternatively, stating that “whether the consolidation is in alternative or eventual should be determined based on the nature of the consolidated claims, not on the parties' intentions.” On the other hand, the Supreme Court has also ruled that “if multiple claims are logically interconnected and there is a rational need to prioritize them in the order of adjudication, the consolidation of claims with a designated order by the parties can also be allowed as a quasi-eventual consolidation,” thus permitting more claims to be consolidated eventually. Amid the emergence of rulings that adhere more closely to the classification theory of consolidations established in Korea and those that recognize exceptions, this paper reexamines the theory. It points out the lack of theoretical justification for the theory, questions whether the “logical incompatibility” requirement should be upheld, and argues that, from the perspective of protecting the defendant’s interest in receiving a judicial judgment, it would be sufficient to require only the “relevance of the claims” as a condition for eventual consolidation.