예비적 청구병합의 요건과 심판방법 - 판례 법리의 재검토

Traditionally, alternative claims in civil litigation were permitted only when the claims were mutually exclusive. However, Korean Supreme Court precedents have long accepted “non-genuine alternative claims,” where compatible claims are combined in the alternative. As a result, the requirement of mutual exclusiveness has lost its significance. This paper argues that the legality of alternative claims, as a form of conditional pleading, can be sufficiently ensured through the requirement of relevance alone, rendering the mutual exclusiveness requirement obsolete. While mainstream jurisprudence treats non-genuine alternative claims in the same manner as genuine alternative claims, it inconsistently applies different reasoning in appellate review. Specifically, courts have held that the nature of the claims, not the parties’ intent, should determine the form of combination—treating them like optional claims. This approach lacks coherence. If non-genuine alternative claims are to be recognized, the procedural rules for alternative pleading should be consistently applied. The abolition of the mutual exclusiveness requirement would make alternative combination possible in all cases where optional combination is allowed. Given the problems of claim indeterminacy and potential violations of party disposition principles inherent in optional combination, this paper ultimately suggests that the optional combination should be abolished and integrated into the alternative claim system.