예비적·선택적 공동소송에서공동소송인 간의 분리확정 가능성 -대법원 2022. 4. 14. 선고 2020다224975 판결을 소재로-

The Korean Civil Procedure Law introduced a preliminary or selective co-litigation system when revised in 2002. Even in the case of a regular co-litigation, if each claim is legally incompatible, the special rules for mandatory class action lawsuits are applied in principle. However, since the nature of a preliminary or selective co-litigation is that of a regular co-litigation, each co-litigant can take actions to dispose of the lawsuit, such as waiver or admission of claims, settlement, and withdrawal of lawsuit. In practice, there are cases where only some co-litigants file objections to a mediation or reconciliation recommendation decision, while the remaining parties do not. At this time, the issue arises as to whether the claim of the party who did not file an objection should be confirmed separately from the claim of the party who filed an objection. The Supreme Court’s ruling 2006da57872 on July 10, 2008 stated that in principle, separation can be confirmed, but in some exceptional cases, separation is not permitted. The Supreme Court’s ruling 2014da75202 on March 20, 2015 reaffirmed this. The Supreme Court’s ruling 2020da224975 on April 14, 2022 took the same stance in its decision. Considering the plaintiff’s intention to specify the defendant and structure the litigation in a preliminary co-litigation to obtain a consistent judgment, the fairness between the parties, and the legislative intent of Article 70, Paragraph 1, the above Supreme Court decision is reasonable in its conclusion. However, in most cases, this will not allow for a final separation between co-litigants. And the reconciliation recommendation decision is not stipulated in the proviso of Article 70, Paragraph 1. In actual practice, there is a concern that it may cause instability in litigation procedures and harm legal stability. In response to these criticisms, Article 70, Paragraph 1 needs to be revised.