부진정예비적 병합의 적법요건에 관한 검토

The previous Supreme Court precedents have recognized a ‘non-genuine subordinate joinder of claims’ only when there exists ‘a reasonable necessity’ to request adjudication in a designated order to the alternative joinder of claims. However, two later decisions have raised controversy: (1) a Decision (Supreme Court Decision, May 29, 2014, 2013Da96868, hereinafter “Decision ②”) which held that when a party brings an alternative joinder of claims under the condition of priority, the scope of review on appeal must be determined according to the nature of the joinder; and (2) a Decision (Supreme Court Decision, May 7, 2021, 2020Da292411, hereinafter “Decision ④”) which recognized a non-genuine subordinate joinder of claims even in a situation that appeared to constitute a simple joinder of claims, namely where the plaintiff combined claims for property damage and emotional distress. As a result, confusion has persisted regarding the position of the Court. According to the analysis presented in this paper, first, Decision ②, although formally an alternative joinder of claims in nature, should be understood as having determined the scope of appellate review as one involving an alternative joinder of claims. Since the claims joined are equal in monetary amount, there is no reasonable necessity to file the claims conditionally in a specified order. Therefore, Decision ② does not conflict with earlier precedent. Second, in Decision ④, the Court regarded the joined claims as being, by their nature, in an alternative joinder relationship. This is because, under the legal principle established by precedent, under which mental suffering is not acknowledged, if pecuniary damage is recognized for property loss. Moreover, a reasonable necessity to file claims under the condition of adjudication order, may also be recognized, because a non-monetary unequal relationship can be found in this case. Therefore, Decision ④ can also be interpreted as being consistent with prior Supreme Court rulings.