[2] The case holding that the revocation of security by a single judge of a district court, even though the collegiate panel of the court which accepted the petition for revocation of security, made a decision to revoke security is in violation of exclusive jurisdiction

[2] In a case where the collegiate panel of the district court, which is the court of the lawsuit seeking cancellation of the registration of a neighboring mortgage, ordered the suspension of an auction procedure, and the single judge of the district court, which is not the court of the lawsuit, revoked the first instance judgment and transferred the case to the collegiate panel of the district court, which is the competent court of the first instance, on the ground that the above revocation of a security

According to Article 125 of the Civil Procedure Act and Article 23 of the Rules of Civil Procedure, which applies mutatis mutandis to the cancellation of security under the Civil Execution Act pursuant to Article 19(3) of the Civil Execution Act, the case of application for cancellation of security shall be under the jurisdiction of the court that rendered the decision of provision of security or the court that keeps the records thereof. In this context, “the court that issued the decision of provision of security or the court that keeps the records thereof” refers to the court of lawsuit, which is under the jurisdiction

According to the records, the decision of this case was made by the collegiate division of the Seoul Southern District Court, the court of the lawsuit seeking cancellation of the registration of the establishment of a neighboring mortgage filed by the applicant, ordering the suspension of the auction procedure at the request of the applicant. Thus, the decision of revocation of this case's security should have been made by the collegiate division of the Seoul Southern District Court, the court of the lawsuit that

Nevertheless, the lower court dismissed the Re-Appellant’s appeal on the ground that the revocation of the instant security made by a single judge, not the court of the lawsuit, Seoul Southern District Court, and thus, the lower court erred by misapprehending the legal doctrine on exclusive jurisdiction.

Therefore, without further proceeding to decide on the grounds of re-appeal, the order of the court below is reversed and self-determination. The decision of the court of first instance is revoked and the case is transferred to the Panel Division of the Seoul Southern District Court, the competent court of first instance, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)