Reconsideration of selective merger among objective mergers of lawsuits

As is well known, there are objective mergers and subjective mergers in cases of merger, and in objective mergers(merger of claims) there are primitive mergers and late mergers, and in primitive mergers there are forms of simple mergers, selective mergers, and preliminary mergers. Previously, the dominant view required ‘competition of claims (right to form)’ as a requirement for selective merging of claims, but the term ‘competition of claims’ is commonly used in substantive law(civil law) and procedural law(civil procedure law), and therefore the concept also needs to be unified to avoid confusion. Here, the dominant view among civil law scholars is that “a single fact of life” must satisfy multiple laws and give rise to multiple rights as a requirement for the “competing claims”, so it is necessary to stipulate “a single fact of life” as a requirement for the “competing claims” in the civil procedure act as well. And in the process, as long as the requirement of ‘exercise(achieving the purpose) of one claim(right to form) extinguishes the other claims(right to form)’ is met due to the nature of selective merger, which is ‘the inseparable combination of each merged claim’, For example, it should be said that the selective merger theory can be applied in so-called ‘traditional cases’ where the claim competition theory is applied, as well as in so-called ‘exclusive cases’ even if the claim competition theory is not strictly applied. However, in the case of so-called ‘extension cases’ that have nothing to do with competing claims or ‘exercise (achieving the purpose) of one claim(right to form) to extinguish other claims(right to form)’, citation of one claim that has been selectively merged Since the res judicata of the final judgment does not extend to the remaining claims, it is no different from a so-called ‘exclusive case’ in that the parties can file a separate action regarding the remaining claims at any time, but depending on the final judgment of citation regarding one claim, In light of the fact that other claims still exist even if payment is received, it should be seen that the theory of selective consolidation cannot be applied here. In addition, with respect to the fulfillment of the release condition of ‘citation of one claim among each merged claim’ required in selective merger, the time of fulfillment of that condition is when a judgment citing one claim is pronounced, and the effect of fulfillment of that condition is the merger. The continuation of the lawsuit should be viewed as extinguished retroactively from that time. Subsequently, since the parties intention to selectively merge is required as an additional requirement for selective merger, if the exercise(achievement of the purpose) of a claim(right to form) results in the extinguishment of the remaining claims(right to form), the court's decision to merge claims is filed. If the intention of the parties is not clear despite the explanation, the court must judge it as a simple merger. Furthermore, in the event that an appeal is filed against the first trial ruling regarding selectively merged claims, the appellate trial will be held regardless of the scope of the appellant's appeal, due to the effect of the appeal and the nature of selective merger of ‘indivisible combination of each merged claim’. And all of the merged claims are blocked from being confirmed and are transferred to the appellate trial and are subject to the appellate trial. This legal principle dismisses only some of the selectively merged claims in the first trial ruling on selective merger, and dismisses the rest. It should be said that it still applies even if no judgment is made.