예비적･선택적 공동소송과 독립당사자참가소송에 있어서 당사자처분권주의와 불이익변경금지원칙 배제의 타당성 검토

Abstract

In a joinder with alternative claims, all claims from the original trial are transferred to the upper court due to the indivisible doctrine of appeal, but because the object of trial is limited to claims that had been dissatisfied,the range of the second trial and the object of judgment are viewed differently. As a result, in case a plaintiff in the original trial whose first claim was defeated but won the second claim decides not to appeal and the defendant who had lost the second claim appeals, the first claim and the second claim are both transferred to the upper court but the object of trial is limited only to the second claim. If there is no reason to try the second claim, the original judgment can be reversed and the claim rejected. Thus the plaintiff to the appellate can have both the first claim in the original trial and the second claim in the upper court rejected, creating an unusual but acknowledged phenomenon in which the plaintiff to the appellate loses both cases, even though one of those claims should have been won. However, in a preliminary or selective co–litigation or lawsuit of intervention as independent party, even though it is not a unitedly confirmed lawsuit according to substantive law, the regulations for indispensable co–litigation are applied, and separate or partial judgment in pleading are not allowed. Thus in case only the second party appeals, judgment on the first party in the original claim is not confirmed but transferred to the appellate trial and becomes the object of judgment. Because the claim concerning the first party who had not sued or made an appeal in the second trial becomes the object of judgment, judgment can at times produce a more disadvantageous result than the judgment of the original trial. In other words, it is argued that there should be a unitedly confirmed judgment and that the system of adversary disposition right and the principle of prohibition of reformatio in peius in the upper court should be excluded. However, the exclusion here is occurring not in indispensable co–litigation but in preliminary or selective co–litigation and lawsuit of intervention as independent party, which are lawsuits that substantially do not require a unitedly confirmed judgment. The requirement of such a judgment, and hence the exclusion, comes only from the fact that,in terms of procedural law, a co–litigation is presented. This is clearly undeserved. Accordingly, the proper course of action would be to keep the system of adversary disposition right and the principle of prohibition of reformatio in peius in preliminary or selective co–litigation and lawsuit of intervention as independent party, just as they are kept in preliminary or selective co–litigation, and it would be appropriate for the Supreme Court,which has set a contrary precedent, to modify its opinion on the issue.