2017Da263642 (Counterclaim) Money

2. Dan F&Wn;

B

30413 Judgment (Counterclaim)

All appeals by the Defendant-Counterclaim Plaintiff regarding the counterclaim are dismissed.

1. As to the ground of appeal on the claim of the principal lawsuit

A. Where an executive title is a notarial deed, a lawsuit of demurrer against such claim shall belong to the exclusive jurisdiction of the court located in the location of the debtor’s general forum (main sentence of Articles 59(4) and 21 of the Civil Execution Act), and the provisions governing the jurisdiction of pleadings under Article 30 of the Civil Procedure Act shall not apply to lawsuits for which an exclusive jurisdiction has been determined

B. The record reveals the following facts.

(1) The address of the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) filed a lawsuit seeking confirmation of existence of an obligation against the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) at the Seoul Eastern District Court having jurisdiction over his domicile against the Defendant on November 30, 2015, the Seoul Songpa-gu F building, 301, and the location of the principal office of the Plaintiff Cyn F&W Co., Ltd. at the Seoul Songpa-gu G and the first floor 236-1. (2) The Plaintiffs filed a lawsuit seeking confirmation of existence of an obligation with the Seoul East Eastern District Court having jurisdiction over his domicile that the obligation of promissory notes based on the instant authentic deed against the Defendant is not nonexistent. The said court rendered a decision to transfer the principal office of this case to the Seoul Northern District Court having jurisdiction over the Defendant’s domicile on December 1, 2015. The said decision became final and conclusive at that time.

(3) Accordingly, on March 2, 2016, the principal lawsuit of this case was received by the same court 2016 group 109151 at the Seoul Northern District Court (Seoul Northern District Court), which was the first instance court. On June 24, 2016, the Plaintiffs’ legal representative stated that he made a written complaint at the date of the first instance trial on June 24, 2016, and changed the claim to the effect that he would not be subject to compulsory execution based on the instant notarial deed against the Plaintiffs by the Defendant. In response, the Defendant did not raise any objection.

(4) On August 19, 2016, the first instance court rendered a judgment in favor of all the Plaintiffs that “The compulsory execution based on the instant Notarial Deed against the Plaintiffs of the Defendant shall not be permitted according to the amended purport of the claim as seen earlier,” following the closure of pleadings on August 19, 2016.”

(5) On September 27, 2016, the Defendant appealed against the judgment of the first instance. On January 10, 2017, the Defendant filed the instant counterclaim against the Plaintiffs. The lower court dismissed all of the Defendant’s appeals against the Plaintiffs on August 23, 2017, and dismissed all the Defendant’s counterclaim against the Plaintiffs added at the lower court.

C. If the facts are identical, the principal lawsuit of this case filed by the plaintiffs was lawfully changed from the first instance court to the lawsuit of the claim on a notarial deed, and thus, the principal lawsuit of this case has exclusive jurisdiction over the Seoul Eastern District Court having jurisdiction over the plaintiffs' domicile, the debtor of the notarial deed of this case, and even if the defendant testified without the defendant's defense of violation of jurisdiction in the first instance court, it cannot be deemed that the first instance court has jurisdiction over the principal lawsuit of this case, which belongs to the exclusive jurisdiction of the Seoul East Eastern District Court.

D. Nevertheless, the first instance court and the lower court rendered a judgment on the merits with an emphasis on the fact that the exclusive jurisdiction over the merits of this case exists in another court. In so doing, the first instance court and the lower court erred by misapprehending the legal doctrine on exclusive jurisdiction, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

2. As to the ground of appeal on the counterclaim

The court below held that with respect to the Defendant’s primary claim against the Defendant, KRW 21 million, which the Plaintiffs paid to the Defendant, was paid for the repayment of the principal of the bills stated in the instant notarial deed, not interest or delay damages, and even if the Plaintiffs were liable for the amount stated in the instant notarial deed, it is reasonable to view that the Plaintiffs’ obligation against the Defendant, including the amount of bills stated in the instant notarial deed, was extinguished by the Plaintiffs’ effective performance of obligations under the instant notarial deed, and ② in relation to the Defendant’s conjunctive claim against the Defendant, the evidence presented by the Defendant alone is insufficient to recognize that C and D, by deceiving the Defendant, acquired 60 million won or was aware of such circumstances at the time. Accordingly, all of the Defendant’s counterclaim claims against the Plaintiffs were not accepted.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal on the principal lawsuit, the part of the judgment of the court below concerning the principal lawsuit shall be reversed, the judgment of the court of first instance shall be revoked, and this part of the case shall be transferred to the competent court, and all appeals on the Defendant’s counterclaim shall be dismissed. It is so decided as per Disposition

Justices Kim Jae-han

Justices Lee Dong-won

Justices Park Jong-young