Summary
Objective joinder presupposes claims that are subject to the same type of litigation procedure.
1.1The Standard by Which the Path Opens
Whether a dispute connected in content can also be carried in the same proceedings is a separate question. While accepting the premise that no expiration date for the case is invented or used before service, the facts giving rise to the period, and the applicable rules are confirmed, this asks whether, if the claims are related, they may be brought together in whatever proceedings, and what the criteria are for opening the channel of this relief. In the scene, plaintiff A, having claimed delivery of an article, has come to seek damages as well, and defendant B intends to present a related receivable by counterclaim. On the sole ground that the contents of the claims touch upon one another, whether the two claims can be carried in one set of proceedings has not yet been determined.
The relevant text is found in Article 253 of the Civil Procedure Act. The Article states that "Article 253 (Objective Joinder of Actions) Multiple claims may be brought in one action only where they follow the same type of litigation proceedings." Here the subject is the person seeking to bring multiple claims in one action, the act is the joinder of such claims, and the condition is that each of the claims joined follows the same type of litigation proceedings. Objective joinder means the gathering of multiple claims into one action, and this definition attaches not to the number of persons making the claims but to the number of claims gathered in the action.
The point at which this text meets the foregoing conclusion is that the identity of the type of proceedings constitutes a separate threshold placed at the entrance to joinder. The connection in content between the claims goes only to the convenience of the examination or the scope of dispute resolution; it cannot substitute for the question whether the litigation proceedings followed by each claim to be joined are the same. Accordingly, where the statutory relatedness and procedural requirements for joinder, amendment, or counterclaim are satisfied and the necessary service has been made, the entrance to this relief is opened. This is why the single determination that relatedness is satisfied and the separate determination that the procedural requirements are met must be considered together.
The counterargument that the division of proceedings obstructs an integrated resolution points to the loss that, when disputes are gathered into one proceeding, the examination may be delayed and the right of defense weakened. If the defendant confronts an unexpected claim within the same action, preparation of the defense is fragmented, and the inconvenience that the facts entangled in a single case multiply and the examination is delayed remains in reality. Yet erasing these disadvantages does not erase the difference in the type of proceedings along with them. The difference in the type of proceedings cannot be erased by factual relatedness alone; only by establishing together the factual determination of relatedness and the separate determination of procedural requirements can the channel be opened in a direction that reduces the loss of the right of defense.
In the scene, plaintiff A's claim runs from delivery of an article to damages, and the related receivable to be placed in defendant B's counterclaim complaint lies alongside it. On these facts alone, whether the two claims follow the same type of litigation proceedings, whether the necessary service materials are in place, and whether the statement of the claim's purpose and the basis of the claim before and after the amendment have been organized together are all undetermined. The statement of the claim's purpose and the basis of the claim before and after the amendment, the application for amendment, the service materials, and the counterclaim complaint serve as the materials for the determination. If the premise of the same basis is confirmed to be negated, the possibility of amendment within the same action is re-examined.
What this section permits is the entrance where relatedness and the procedural requirements are satisfied together and service is in place; it does not permit an interpretation that erases the difference in the type of proceedings on the basis of factual relatedness alone. If what performance is owed, who the parties are, and what conditions attach have not been specified in the statement of the claim's purpose, or if this is in a manner that impedes the right chosen by the action, the entrance does not open; conversely, the mere circumstance that these requirements are in place does not lead to the conclusion that the examination was in fact not delayed or that the right of defense was preserved.
1.2The Conditions That Block Relief
This is because two claims need not follow the same litigation proceedings merely because they address the same issue. That sentence goes no further than saying that no expiration date for the case is invented or used before service, the facts giving rise to the period, and the applicable rules are confirmed, and it is not explained anew at this point. Setting the premise received earlier aside, the matter is placed in the scene in which plaintiff A, having claimed delivery of an article, has come to seek damages as well, and defendant B intends to present a related receivable by counterclaim. The dispute in that scene appears entangled in its content. From this arise the questions whether, if the claims are related, they may be brought together in whatever proceedings, and what the conditions are under which the channel is closed.
On this question the relevant text reads as follows. "Article 253 (Objective Joinder of Actions) Multiple claims may be brought in one action only where they follow the same type of litigation proceedings." (Civil Procedure Act Article 253) Here objective joinder means the gathering of multiple claims into one action. Accordingly, even without express reference to the subject of "multiple claims," the text attaches to the claims to be joined the condition that they "follow the same type of litigation proceedings." Only where that condition is satisfied can they be brought in one action. Whether the condition is satisfied is examined among the claims attempting to join, and is not determined automatically from how closely the facts of the dispute are connected.
Accordingly, the relevant text and the conclusion at this point point in the same direction. If an amendment changes the basis of the claim or causes conspicuous delay, or otherwise contravenes the permissibility requirements, or if even one of the statutory requirements is not satisfied, the channel of relief is closed. What must be distinguished here is "relatedness among the claims" and "the type of proceedings followed by the claims." Even where all claims take root in the same cause of action, if the type of proceedings in which each claim is placed differs, the threshold of joinder is closed. Failing to satisfy even one requirement is not something to pass over as a separate issue, but is to be read as meaning that the road to placing them in the same action is blocked at that point.
The strongest counterargument comes from the contention that the division of proceedings obstructs an integrated resolution. The remark that, in trying to gather a dispute into one proceeding, the examination may be delayed and the right of defense weakened, points to the loss that when a dispute remains entangled and is scattered across several fora, judgments diverge and the parties must explain the same matter twice. Yet even with such inconvenience, the difference in the type of proceedings cannot be erased by factual relatedness alone. The fact that factual relatedness is great is a matter arising only after the requirements of joinder have already been met; it cannot substitute for the condition that the type of proceedings be the same. The costs noted by the counterargument—delay in examination and weakening of the right of defense—remain to the end. This does not mean the counterargument is wrong; it is to be understood as meaning that the convenience urged by the counterargument and the statutory requirements of joinder lie on different planes.
From the synthetic scene, only the facts belonging to this question are drawn out. Plaintiff A wishes to add a claim for damages to his claim for delivery of an article, and defendant B seeks to bring a related receivable by counterclaim. These demands appear to share the same thread of the case in content, but the scene does not indicate what type of litigation proceedings each follows. Whether the condition of "following the same type of litigation proceedings" is therefore satisfied cannot be determined on this scene alone. If the premise of the same basis is confirmed to be negated, the possibility of amendment within the same action is re-examined; hence, the moment the relationship between the bases of the claims is shaken, the possibility of amendment within the same action must be reconsidered, and the scene supplies no material necessary for that determination.
What can therefore be determined at this point is narrow. Related claims cannot for that reason alone be carried together in one action in whatever proceedings; for multiple claims to be gathered into one action, there must be the condition that they follow the same type of litigation proceedings. If this condition is not achieved, or if the amendment changes the basis of the claim or otherwise contravenes the permissibility requirements, the channel of gathering them into one action and resolving them there is closed. This does not make the original claims disappear, and in what range the claims may be altered remains a separate question.
1.3The Boundary That Remains When There Is No Data
In such a scene, even if the contents of the additional demand and the existing claim appear to be continuous, it is not thereby determined that the two demands can immediately be carried in one action. Here the boundary is asked about.
On this question the relevant text lies in Article 253 of the Civil Procedure Act. That Article provides that "multiple claims may be brought in one action only where they follow the same type of litigation proceedings." In defining the range of claims that can be gathered into one action, this text requires, as its premise, that the type of litigation proceedings followed by the claims be the same. The so-called objective joinder means the gathering of multiple claims into one action, and the permissibility of that joinder is here bound to the foregoing condition.
Accordingly, the determination that the contents of the claims are connected and whether the two claims follow the same type of litigation proceedings are examined separately. Relatedness of content refers to the circumstance that the subject matter of the dispute overlaps or that the background of the case is continuous, whereas identity of the type of proceedings asks whether the statutory channel in which each claim is to be carried is the same. The former circumstance alone does not satisfy the latter condition, and the author, on precisely this distinction, defers a unified determination so long as the difference in the type of proceedings remains.
The inconvenience this distinction brings is clear. If proceedings are divided, one trial cannot resolve the dispute entire, the parties must explain the same facts anew in separate fora, and the delayed examination may weaken the right of defense. Even so, the difference in the type of proceedings cannot be erased by factual relatedness alone. The regret that an integrated resolution is unavailable does not diminish the weight of the counterargument; and on the other hand, however great the relatedness of the matter, it does not lead to permitting a joinder that lacks the premise of the same type of litigation proceedings.
Plaintiff A's claim for delivery and demand for damages, and defendant B's intention to counterclaim, all arise from the same dispute. Yet what the demands are, and in what relation they stand to the existing claim, can be discerned only after further accumulation of the records. Matters left unclear as to that relation are cases in which the materials for judgment are not specified, and this case is not declared an inability to place the claims in the same action, but is left undetermined. If the premise of the same basis is negated, the possibility of amendment within the same action is re-examined.
Accordingly, neither the conclusion that they can be gathered into one action on the sole ground that the contents are connected, nor the conclusion that they can in no case be brought together, is determined at this point. What has been settled above is only the limitation that joinder is possible only where the type of proceedings of the claims is the same, and no new ground has been added beyond it.
1.4The Records Needed for Determination
Can related claims be brought together in whatever proceedings? Precisely at this point, whether the dispute contents are connected and the type of proceedings in which those claims are to be carried diverge as questions of different dimensions. Up to the preceding stage, the conclusion was confirmed that no expiration date for the case is created or used until the service, the facts from which the period runs, and the applicable rules have all been settled. But that conclusion does not substitute for the record requirements of this section. This stage asks what the materials supporting that judgment must be when related claims are sought to be gathered in one place.
The relevant original text answering this question is Article 253 of the Civil Procedure Act. The Article deals with the objective joinder of actions and declares that "multiple claims may be brought in one action only where they follow the same type of litigation proceedings" (Civil Procedure Act Article 253). Here "multiple claims" refers to the plurality of claims sought to be pursued together within one action, and "the same type of litigation proceedings" means the identity of the procedural form that each of those claims must follow. Accordingly, this text, when judging the permissibility of joinder, makes identity of the type of proceedings, not the factual connection between the claims, the prior condition.
Since objective joinder is the gathering of multiple claims into one action, its definition alone does not determine whether they can be carried in one action. For the definition designates only the act of gathering, and confers no qualification to gather. The reason for maintaining this distinction is that the text of Article 253 binds the possibility of joinder to "the same type of litigation proceedings." Even for two claims arising from the same facts, if their respective procedural forms differ, the route to gathering them into one action does not open under the text. On the premise of this distinction of the type of proceedings, the determination is bound to the designated records. The materials used for the determination are limited to what is recorded in the statement of the claim's purpose and the basis of the claim before and after the amendment, the application for amendment, the service materials, and the counterclaim complaint, and other records are not included.
A criticism may be raised that distinguishing the type of proceedings blocks an integrated resolution. It is pointed out as a loss that, in trying to gather a dispute into one proceeding, the examination may be delayed and the right of defense weakened. The inconvenience that the substantive interest in handling all related issues in one place is obstructed by the wall of procedural form and the dispute is fragmented plainly exists. Even so, the author's answer is that the difference in the type of proceedings cannot be erased by factual relatedness alone. In maintaining this conclusion, the delay and the difficulties of the right of defense noted by the counterargument are not concealed. It is noted only, together with this, that if the distinction of the type of proceedings is itself broken down on the strength of that inconvenience, the criterion for deciding in which proceedings to place the matter disappears.
In the synthetic scene, plaintiff A, having claimed delivery of an article, has come to seek damages as well, and defendant B intends to present a related receivable by counterclaim. The facts corresponding to this question in the scene are that the claims have increased and that the defendant's claim too seeks to enter the same place. But the scene does not specify what procedural form each claim follows, or in what state the application for amendment or the service stands. Accordingly, on this scene alone it is not determined whether the type of proceedings of the claims is the same, and thus whether the text of objective joinder is satisfied. What the counterclaim complaint and the application for amendment and service materials have recorded also lies outside the scope of the scene.
The conclusion permitted by this section is that identity of the type of proceedings is a condition under the text of objective joinder and that the stage determination is based on the designated records. This conclusion does not permit declaring on the sole ground of the relatedness of the dispute contents that the claims can be gathered into one action, nor filling in by presumption a procedural form not revealed in the records. Matters that cannot be confirmed as to what the records contain must remain undetermined, and undetermined does not itself mean that joinder is impossible.
1.5Circumstances That Change the Decision
This determination rests on the statement of the claim, the basis of the claim, the application for amendment, the service materials, and the counterclaim complaint, both before and after the amendment. Without those records, the conclusion remains undetermined. In this scene, the issue is whether, if the claims are related, they may be brought together in whatever procedure. One must first distinguish whether the expression "brought together" means actually carried in one procedure, or merely means that their content is interlocked.
On whether related claims may be brought together in whatever procedure, Article 253 of the Civil Procedure Act sets out the wording: "multiple claims, only where they follow the same type of litigation proceedings." The subject indicated by this wording is the person seeking to bring an action, and the act is the gathering of multiple claims into a single action. The condition is limited to the case where those multiple claims follow the same type of litigation proceedings. Here, only the requirement of the wording is addressed, namely that where the type of litigation proceedings differs, the claims cannot be brought in a single action.
Objective joinder means the gathering of multiple claims into a single action. Under this definition, one must separate what is to be gathered from the conditions under which it may be gathered. The former is the fact that the number of claims is not one; the latter is the determination whether those claims follow the same type of litigation proceedings. If the two steps are merged, it appears as though the possibility of joinder were decided on relatedness of content alone.
The counterargument that procedural distinctions impede an integrated resolution appears here in its strongest form, carrying the concern that, in attempting to gather a dispute into one procedure, the examination may be delayed and the right of defense weakened. If the claims are contested separately, the same facts are examined twice, and each party must defend itself in a different court. A close relationship does not make a claim one that follows the same type of litigation proceedings, and the delay and the burden of defense noted by the counterargument cannot serve as grounds for relaxing the requirements of joinder.
In the synthetic scene, the fact that plaintiff A, having claimed delivery of an object, came also to demand damages shows that there are two or more claims. The fact that defendant B seeks to present a related claim for performance as a counterclaim is an attempt to bring a new claim into the same lawsuit. Yet this scene alone does not establish whether the claim for damages follows the same type of litigation proceedings as the claim for delivery of an object, or to what procedure the claim to be presented as a counterclaim belongs. To the extent that what the additional demand consists of remains unclear, the matter is left undetermined.
The conclusion permitted by this section is the determination that the gateway to joinder is not relatedness of the content of the claims, but whether they follow the same type of litigation proceedings. Accordingly, one cannot assert, merely because the content is interlocked, that the claims may be brought together in whatever procedure. Conversely, this determination is not a conclusion that prohibits joinder altogether, nor one that rejects the claim for damages or the counterclaim itself.
1.6The Strongest Counterargument and the Answer
However much one wishes to deal with claims whose content is intertwined in a single place, one must first ask whether those claims are laid upon the framework of the same procedure. What is settled here is whether related claims may be brought together in whatever procedure. This does not go so far as the point at which the demand would change.
Article 253 of the Civil Procedure Act provides: "Article 253 (Objective Joinder of Claims) Multiple claims may be brought in a single action only where they follow the same type of litigation proceedings." This wording binds together in one line the subject and the act of bringing multiple claims in a single action, and the condition that those claims follow the same type of litigation proceedings. This condition does not prevent joinder itself; it determines the form of the place where joinder may arise.
The "same type of litigation proceedings" required by the above wording is a stage of determination distinct from factual relatedness among the claims. However closely the facts may be interlocked, if that factual background runs, for each claim, on the premise of a different kind of procedure, they cannot be contested together within a single action. Accordingly, to the question whether related claims may be brought together in whatever procedure, the answer holds that objective joinder presupposes claims that follow the same type of litigation proceedings. The distinction here is not intended to multiply procedures; it simply carries over as written the conditions for joinder to arise.
The counterargument that procedural distinctions impede an integrated resolution squarely acknowledges that inconvenience. To gather a dispute into one procedure is also to lay out together issues that would first be concluded in another procedure, with the result that the examination is delayed and the room to exercise the right of defense may narrow. The answer that factual relatedness alone cannot erase the difference in the type of procedure does not cover over this loss. It means only that the condition of joinder itself is not altered for the sake of the convenience of a single integrated resolution. Convenience and condition are each kept in their own place.
In the synthetic scene, plaintiff A adds a claim for damages to the claim for delivery of an object, and defendant B seeks to present a related claim for performance as a counterclaim. Whether the claim for damages and the counterclaim are each claims following the same type of litigation proceedings is not determined by this scene alone. Where it is unclear what the additional demand consists of, or what its relation to the existing claim is, the matter is left undetermined. Accordingly, what can be determined in this scene is only the existence of the condition, and it is not asserted that the condition has actually been met.
The conclusion permitted by this section is a narrow one. Following the wording that objective joinder presupposes claims that follow the same type of litigation proceedings, factual relatedness alone cannot erase the difference in the type of procedure. Conversely, one cannot read this occasion expansively so as to cover the extent to which claims may be altered within the same action, or the conditions under which a counterclaim is admitted.
1.7The Link to the Application and the Dispositive Part
In this scene, the question of this occasion is through what channel the demand that the plaintiff seeks to enlarge and the claim the defendant seeks to put forward must pass in order to be dealt with within the same action.
Article 253 of the Civil Procedure Act begins with the words: "Article 253 (Objective Joinder of Claims) Multiple claims, only where they follow the same type of litigation proceedings" (Article 253 of the Civil Procedure Act). This phrase points not to the location or the legal nature of the claims, but to the fact that, for multiple claims to be carried in a single action, they must be in a case that follows the same type of litigation proceedings. This is because, in order to become the subject that gathers claims into a single action, one must first identify which procedure each claim requires.
The conclusion drawn from that wording is attached to a further distinction. What this definition indicates is only the form of joinder; what the wording "following the same type of litigation proceedings" indicates is the condition of joinder. However similar the forms may appear, if the condition is not judged separately, the result is that claims are loaded into a single action beyond the range permitted by Article 253 of the Civil Procedure Act (Article 253 of the Civil Procedure Act).
The counterargument that procedural distinctions impede an integrated resolution opposes this most openly. It is noted that the plaintiff's claim for delivery and the demand for damages arise from the same dispute, and the defendant's related claim for performance is attached to it; so if the procedures are deliberately split for examination, evidence and issues pass back and forth twice, the trial is delayed, and each party has less room to rebut the other's assertions properly. However great the relatedness may be, binding claims that follow a different type of litigation proceedings into the same action remains outside what the wording prescribes.
In the scene where plaintiff A, having claimed delivery of an object, came also to demand damages, and defendant B seeks to present a related claim for performance as a counterclaim, what must first be confirmed is not the manner of joinder but which litigation proceedings each demand follows. Whether the demand for damages and the claim to be presented as a counterclaim follow the same type of litigation proceedings as the claim for delivery of an object cannot be determined by this scene alone. Only the point that form and condition are judged separately is established, and the statement of the claim and the basis of the claim before and after the amendment, the application for amendment, the service materials, and the counterclaim complaint serve as the materials of determination.
The conclusion permitted by this section extends only to the point that, in judging the manner of gathering claims into a single action, one first asks after the condition of the same type of litigation proceedings, rather than the number of claims or the connection of facts; it does not determine here whether each demand actually comes within that condition. What procedure the demand for damages or the defendant's claim for performance follows, and whether that demand is a relief to be included in the statement of the claim and carried into the dispositive part or not, must not be passed over without confirmed facts; and this determination opens the possibility of joinder within the same action only after that condition has been satisfied.
1.8The Scope This Section Undertakes
The mere circumstance that the two demands and the counterclaim are intertwined in the facts raises a separate question whether they can simply be gathered as they stand into a single action already pending. The issue of service and the determination of facts concerning the commencement date, addressed at the previous stage, is not discussed again here. Here the questions are whether, when the content of the dispute has changed, claims can be carried together into the same lawsuit, and within what range the determination of this section remains. Relatedness in content and procedural admissibility lie on different axes.
On this question, Article 253 of the Civil Procedure Act provides that "multiple claims may be brought in a single action only where they follow the same type of litigation proceedings" (Article 253 of the Civil Procedure Act). This wording directly indicates what character a claim must have in order to be capable of being gathered. That is, it is limited to the case where each claim follows the same type of litigation proceedings. The subject of the wording is the plural claims, the act is the bringing of them in a single action, and the condition is that they follow the same type of litigation proceedings. Whether the provision also stipulates other requirements or effects of joinder is not addressed within this scope.
Under this wording, objective joinder presupposes claims that follow the same type of litigation proceedings. Accordingly, two steps must be judged separately. First, the task of examining whether the claims are related in content, and second, the task of examining whether those claims follow the same type of procedure, are distinct. The mere fact that the facts overlap does not automatically satisfy the second determination. If factual relatedness alone were to erase the difference in the type of procedure, the requirement of the same type of litigation proceedings set by the provision would lose its meaning. Consequently, even for related claims, where the type of procedure differs, gathering them into a single action is not what this provision permits.
The point at which the counterargument that procedural distinctions impede an integrated resolution aims most sharply is the convenience of the dispute. If all demands cannot be dealt with together within a single action, each party must conduct separate procedures, the same factual background is examined twice, and meanwhile room remains for the determinations to diverge. On the defensive side as well, time and cost increase in responding to multiple procedures, and the exercise of the right of defense becomes dispersed. It is noted that it is irresponsible to insist only on the distinction of procedure types while turning away from such inconvenience and cost. What the provision requires is not relatedness but the condition of the same type of litigation proceedings, and a regret arising from convenience cannot substitute for that condition.
Comparing the demands placed in the synthetic scene against the foregoing condition reveals the boundary of the determination. That the claim for delivery of an object and the claim for damages, and the defendant's counterclaim, are connected in their facts is a premise set by the scene. Yet which type of litigation proceedings those claims each follow is not set by the scene and remains undetermined. Under what requirements a counterclaim enters the same lawsuit is likewise a question for another section. Accordingly, this scene alone does not establish whether these claims can actually be gathered into a single action, and the matter is left undetermined.
The conclusion permitted by this section is narrow. The gathering into a single action of multiple claims, called objective joinder, is possible only where those claims follow the same type of litigation proceedings. This determination does not permit drawing claims that follow a different kind of procedure into a single action on the strength of factual relatedness alone. That does not mean that related claims can be disposed of in no way at all. It is only that the conditions and the range of the channel by which they may be resolved remain a separate question.
1.9Application of the Text of the Provisions and the Holdings of Precedents
In this scene, the claim for delivery of an object and the claim for damages are demands to be gathered into a single action, and the defendant's counterclaim is an attempt to insert a separate claim into the same lawsuit. Here the question remains whether related claims may be brought together in whatever procedure. Whether relatedness alone can cross procedure lines is the object of this determination.
As the wording that answers this question, there is Article 253 of the Civil Procedure Act. It provides: "Article 253 (Objective Joinder of Claims) Multiple claims may be brought in a single action only where they follow the same type of litigation proceedings" (Article 253 of the Civil Procedure Act). The subject of this wording is the multiple claims, the act is the bringing of them in a single action, and the condition is that those claims follow the same type of litigation proceedings. Only when this condition is satisfied does it become possible to gather multiple claims into a single action.
The condition stated by this wording is a condition for the arising of objective joinder. That is, the fact that the claims to be joined are connected to one another in content, and the procedural condition that those claims follow the same type of litigation proceedings, are separate stages of determination. However clear the former may be, if the latter is not satisfied, the condition required by this wording is not met. Herein lies the reason the two must be examined separately.
Even so, it may be noted that procedural distinctions impede an integrated resolution. The criticism is that, though the content of the dispute is intertwined, proceeding separately on the sole ground that the procedures differ delays the examination, causes the same facts to be determined twice, and makes the exercise of the right of defense more cumbersome. Yet this criticism merely emphasizes the advantage of an integrated resolution; it cannot substitute for the condition set by the wording. This is because the fact that the facts are connected does not create the condition that multiple claims follow the same type of litigation proceedings.
Placing this distinction in the synthetic scene, whether the claim for damages that the plaintiff seeks to add and the existing claim for delivery of an object can be carried in a single action depends on whether the two claims follow the same type of litigation proceedings. The conditions under which the counterclaim for performance the defendant seeks to present enters the same lawsuit likewise overlap with this determination. However, the scene has settled only the fact that those demands are related to one another; it has not disclosed the type of procedure of each claim, or whether the statutory relatedness requirement is met. Hence, this scene alone does not establish the permissibility of joinder or of the counterclaim.
The conclusion permitted by this section is this. Relying solely on the wording of the source text in question, the determination is that the condition for the arising of objective joinder is that multiple claims follow the same type of litigation proceedings. Extending beyond that wording to the reasons for the judgment or to another paragraph is not permitted by this section. Reading out the reasons for the judgment, or supplementing the content of other provisions in order to broaden the conclusion, is likewise outside this scope.
1.10Fine Distinctions Within the Stage
앞 절의 이 결론을 받아, 이번에 물어야 할 것은 단순하다. 두 청구 사이에 사실관계가 맞물려 있다는 것만으로 서로 다른 종류의 절차에 속하는 청구를 한 소에 실을 수 있는지가 문제다. 청구의 내용이 얽혀 있다는 사실은 부정하기 어렵지만, 그 얽힘이 절차의 문턱을 낮추는지는 별도로 살펴야 한다.
이 물음에 답하는 문언은 민사소송법 제253조에 있다. 조문의 제목은 소의 객관적 병합이고, 그 문언은 "여러 개의 청구는 같은 종류의 소송절차에 따르는 경우에만" 여러 개의 청구가 하나의 소로 제기될 수 있음을 밝힌다(민사소송법 제253조). 이 문언은 여러 개의 청구를 한 소로 제기하는 주체와 행위를 다루며, 그 제기의 조건으로 청구들이 같은 종류의 소송절차에 따른다는 점을 내세운다. 여기서 주목할 대상은 청구들 사이의 사실관계가 아니라 각 청구가 따르는 소송절차의 종류이다. 조문은 이 조건 밖의 다른 쟁점까지 다루지 않으므로, 다른 쟁점은 이 문언의 해설 범위에 넣지 않는다.
그 문언과 이 절의 결론은 이렇게 이어진다. 객관적 병합은 여러 청구를 한 소에 모으는 일을 뜻하고, 그 병합은 같은 종류의 소송절차에 따르는 청구를 전제로 한다. 이 판단에서 두 단계를 구별해야 하는 이유는 병합의 의미와 병합의 허용 조건이 서로 다른 질문에 답하기 때문이다. 전자는 여러 청구를 모으는 행위가 무엇인지, 즉 병합이라는 개념의 외연을 정하고, 후자는 그 행위가 법적으로 허용되는 청구의 범위를 한정한다. 이 구별을 지우면 병합의 개념 자체를 확장하여 다른 종류의 절차에 속하는 청구까지 받아들이는 결과가 되는데, 이는 제253조의 문언이 설정한 전제와 어긋난다.
이 구분에 대한 반론은 명확하다. 절차 구분이 통합된 해결을 방해한다는 지적이 그것이다. 사실관계가 맞물린 분쟁을 하나의 절차에서 함께 처리하지 못하면 심리가 늦어지고, 당사자는 여러 절차를 병행해야 하며, 방어권이 약해질 수 있다. 하나의 소에서 모든 관련 분쟁을 한 번에 다루어 주는 것이 분쟁 해결의 효율과 정의에 부합한다는 비판이다. 사실관계의 관련성은 병합을 고려할 때 실익을 판단하는 요소일 수는 있어도, 조문이 요구하는 같은 종류의 소송절차라는 전제를 대체하지 못한다. 통합된 해결이라는 편의가 조문이 정한 절차 요건을 넘어서지는 않는다.
합성 장면을 이 조건에 대조하면 어느 선까지 판단할 수 있는지가 드러난다. 장면에서 원고 A는 물건 인도를 청구하다가 손해배상도 요구하게 되었는데, 이 두 청구가 한 소에 모아질 수 있는지는 두 청구가 같은 종류의 소송절차에 따르는지에 달려 있다. 같은 절차에 따른다면 병합의 전제는 갖추어졌지만, 이 장면은 각 청구가 실제로 어느 종류의 절차에 속하는지에 대한 자료를 담고 있지 않다. 피고 B가 제시하려는 관련 채권의 반소가 같은 소에 들어올 수 있는지도 별개로, 병합·반소의 법정 관련성과 절차 요건을 충족하고 필요한 송달을 한 경우에 한정된다. 청구의 기초가 바뀌거나 현저한 지연을 일으키는 등 해당 허용 요건에 어긋나면 그 통로는 막힌다. 장면만으로 어느 청구가 어느 절차에 실릴 수 있는지, 그리고 반소가 실제 받아들여질지는 미확정으로 남는다. 실제 사건의 사실·송달·이행 결과와 승패·회수·현장 효과는 장면이 지정하지 않았으므로 확정할 수 없다.
이 절에서 확정할 수 있는 것은 좁다. 따라서 관련된 청구라고 어떤 절차든 함께 제기할 수는 없다. 사실관계의 연결만으로 절차 종류의 차이가 지워지지 않는 한, 병합의 문은 조문이 정한 전제를 충족하는 청구에만 열린다. 이와 달리 청구의 관련성만으로 서로 다른 종류의 절차에 속하는 청구를 한 소에 모을 수 있다고 결론 내릴 수는 없다. 반대로 이 판단이 말하지 않는 것도 분명하다. 같은 종류의 절차에 따른 청구라고 무조건 한 소에 모아야 한다는 것도, 그리고 병합된 청구가 이후 어떻게 변경되는지, 반소가 어떻게 처리되는지도 이 판단의 결론이 아니다. 진행 중인 사건에 새 청구를 넣는 통로의 작동과 차단과 미확정은 어떻게 구별되는가?
1.11Synthesis of Effectiveness, Blockage, and Undetermination
진행 중인 사건에 새 청구를 넣는 통로의 실효·차단·미확정을 어떻게 구별하는가? 송달·기산사실·적용 규칙이 확정되기 전에는 사례의 만료일을 만들어 쓰지 않는다는 점을 전제로, 같은 소 안에서 요구를 더하거나 바꾸고 반소를 거는 일이 각각 어떤 조건에 따라 열리고 막히는지가 여기서 다룰 물음이다.
이 물음에 해당하는 문언은 객관적 병합의 전제를 정한다. 민사소송법 제253조는 "여러 개의 청구는 같은 종류의 소송절차에 따르는 경우에만 하나의 소로 제기할 수 있다."라고 규정한다. 여기서 주체는 청구를 한 소에 모으려는 원고이고, 행위는 여러 개의 청구를 하나의 소로 제기하는 일이다. 조건은 그 청구들이 같은 종류의 소송절차에 따른다는 것이며, 이 조건을 충족하지 못하면 병합은 성립하지 않는다. 조문이 다른 절차나 변경·반소에 관해 무엇을 말하는지는 이 문언만으로는 다루지 않는다.
이 전제와 이 절의 결론을 이으면 새 청구의 통로가 세 갈래로 갈리는 이유가 분명해진다. 병합·변경·반소는 모두 같은 소 안에서 분쟁을 모으는 수단이지만, 각각 법정 관련성과 절차 요건, 필요한 송달을 요구하며 그 충족 여부가 통로의 열림을 결정한다. 그에 비해 막히는 쪽은 변경이 청구의 기초를 바꾸거나 현저한 지연을 일으키는 등 해당 허용 요건에 어긋나는 경우다. 여기에 더해, 미확정은 앞의 두 판단과 구분된다. 추가 요구가 무엇인지 또는 기존 청구와의 관계가 불분명한 경우에 서둘러 열림이나 막힘을 단정하지 않는 것은 사실의 불분명을 요건 불충족으로 옮겨 적지 않기 위한 구별이다.
절차 구분이 통합된 해결을 방해한다는 반론은 실질적인 손실을 겨냥한다. 한 절차에 분쟁을 모으려다 심리가 늦어지고 방어권이 약해질 수 있다는 걱정은, 새로운 요구를 예고 없이 받은 상대방이 방어 자료를 모을 시간을 잃고 심리 범위가 넓어져 사건 전체가 늦어지는 상황을 가리킨다. 사실이 연결되어 있다는 이유만으로 객관적 병합과 청구의 변경, 반소가 서로 다른 통로라는 점까지 없어지지 않기 때문이며, 각 통로가 요구하는 요건은 그대로 남는다.
합성 장면에서 이 물음에 해당하는 사실은 몇 가지로 좁혀진다. 원고 A는 물건 인도라는 청구에 손해배상 청구를 더하고자 하므로 이는 기존 소 안에서의 추가이고, 피고 B는 관련 채권을 반소로 제시하려 하므로 이는 별도의 청구를 같은 소에 넣는 일이다. 그러나 손해배상 청구가 물건 인도 청구와 같은 기초에 서는지, 피고의 채권이 어떤 관련성을 갖는지, 필요한 송달이 이루어졌는지는 이 장면만으로 판단할 수 없다.
이 절이 허용하는 것은 이 세 갈래 통로를 하나로 묶어 보지 않고, 각 조건에 비추어 열림·막힘·미확정을 구분하는 일이다. 허용하지 않는 것은 관련된 청구라면 어떤 절차든 함께 제기할 수 있다는 식으로 절차 종류의 차이를 지우는 결론이다. 객관적 병합은 여러 청구를 한 소에 모으는 일을 뜻하며, 그 문언이 요구하는 전제를 넘어서는 병합은 성립하지 않는다.
1.12Conclusion Carried Over to the Next Section
바로 이 지점에서 묻는다. 그리고 이 물음에서 요구가 달라지면 어느 범위에서 청구를 바꿀 수 있는가라는 다음 물음으로 넘어가야 한다.
이 물음에 답하는 문언은 민사소송법 제253조에 놓여 있다. 그 조문은 "여러 개의 청구는 같은 종류의 소송절차에 따르는 경우에만" 하나의 소로 제기할 수 있다고 규정한다(민사소송법 제253조). 여기서 주체는 여러 청구를 한 소에 모으려는 당사자이고, 행위는 객관적 병합, 즉 여러 청구를 한 소에 모으는 일이다. 조건은 모으려는 각 청구가 같은 종류의 소송절차를 따른다는 것이다.
따라서 청구들의 내용이 서로 관련되어 있다는 사실만으로는 객관적 병합의 조건이 채워지지 않는다. 관련성이 문제의 근원을 하나로 묶는 정도라면, 같은 종류의 소송절차라는 조건은 그 묶음을 어떤 틀 안에서 심리할지를 정하는 기준이다. 이 둘은 서로를 대신하지 못한다. 내용상의 연결은 병합을 시도할 이유를 설명할 뿐, 병합이 허용되는지에 대한 답은 절차의 종류가 같은지에서 구한다.
절차 구분이 통합된 해결을 방해한다는 반론이 가장 크게 문제 삼는 손실은 심리의 지연과 방어권의 약화다. 한 자리에서 모든 관련 다툼을 함께 보기로 했다가 정작 어느 하나의 청구에 대한 준비와 반박이 늦어지면, 당사자는 자기 주장을 온전히 펼 기회를 잃을 수 있다는 우려다. 반론이 지적한 불편을 가볍게 보아서는 안 되지만, 그 불편이 조문이 정한 절차 종류의 구별을 무로 만드는 근거가 되지는 못한다.
합성 장면에서 이 물음과 관련된 사실은 두 가지다. 원고 A는 물건 인도에서 손해배상으로 요구를 넓혔고, 피고 B는 관련 채권을 반소로 제기하려 한다. 이들 청구가 같은 종류의 소송절차를 따르는지는 이 장면만으로 확정되지 않는다. 장면은 청구들이 서로 관련되어 있음을 전제할 뿐, 각 청구가 놓인 절차의 종류를 지정하지 않았기 때문이다. 그러므로 이 장면에서 판단할 수 있는 것은 병합의 문언상 조건이 무엇인지이며, 그 조건이 충족되었는지는 미확정으로 남는다.
이 절이 허용하는 결론은 객관적 병합이 같은 종류의 소송절차에 따르는 청구를 전제로 한다는 점이다. 허용하지 않는 것은 청구들 간의 사실 관련성만으로 어떤 절차든 한 소에 모을 수 있다는 판단이다. 관련성이 아무리 뚜렷해도 절차 종류의 차이가 함께 모으는 일의 장애물을 만든다. 요구가 달라지면 어느 범위에서 청구를 바꿀 수 있는가?