[채무부존재확인][미간행]
In a case where the defendant filed a counterclaim that falls under the jurisdiction of the collegiate panel of a district court after filing an appeal, and the court below rendered a decision of transfer pursuant to Articles 34 and 35 of the Civil Procedure Act, the case reversed the court below's judgment on the ground that the appellate court's judgment is not affected by the already determined appellate court's jurisdiction, and that there is no room for transfer to avoid damage or delay because Article 35 of the Civil Procedure Act does not apply to the appellate court's exclusive jurisdiction, where the appellate court's territorial jurisdiction and pleading jurisdiction of the first instance court with respect to the principal lawsuit is recognized, and the appellate court of the lawsuit is under the jurisdiction of the court of first instance in charge of the appellate case, and even if the collegiate panel of the district court in the appellate court against the judgment of the second instance
Articles 18, 30, 34, and 35 of the Civil Procedure Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)
Re-appellant
Subu District Court Order 2010Na13283, 2011Na956 dated February 11, 2011
The order of the court below shall be reversed, and the case shall be remanded to the Panel Division of Suwon District Court.
The grounds of reappeal are examined (this case was accepted as a special appeal but is dissatisfied with the decision of transfer by the appellate court, so this case is considered as a reappeal case pursuant to Articles 39 and 442 of the Civil Procedure Act.)
According to the records, the court below filed a counterclaim against the plaintiff-appellant, who is the non-applicant, after the appeal by the non-applicant, seeking the payment of consolation money, etc. falling under the jurisdiction of the collegiate division of the district court. The court below found that the defective application for transfer to the Seoul High Court does not fall under its jurisdiction and that the above case was transferred to the Incheon District Court for civil appeal under Articles 34 and 35 of the Civil Procedure Act.
However, this case is a lawsuit seeking confirmation of existence of obligation related to damages caused by a tort, and the first instance court recognizes territorial jurisdiction based on a tort pursuant to Article 18 of the Civil Procedure Act, and according to records, the first instance court recognizes a pleading jurisdiction pursuant to Article 30 of the Civil Procedure Act as the defendant has presented on the merits without a defense of violation of jurisdiction at the first instance court, and the appellate court of this case is under the exclusive jurisdiction determined corresponding thereto depending on the existence of the first instance court, and the appellate court of this case is under the jurisdiction of the first instance court in charge of the appeal case at the first instance court. The appellate court of this case is under the jurisdiction of the court in charge of the first instance court, and even if a counterclaim falling under the jurisdiction of the collegiate panel of the district court against a judgment by a single judge at the second instance court is filed while the district court judges at the second instance (see Supreme Court Decision 92Da2066, May 12, 192).
Therefore, the appellate court of the instant lawsuit is not only under the jurisdiction of the lower court, but also under Article 35 of the Civil Procedure Act, which the lower court cited in the reasoning, does not apply to the exclusive jurisdiction of the lower court, and there is no room for transfer to avoid damage or delay. Thus, the lower court’s decision of this case was unlawful, which
Therefore, the order of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Ahn Dai-hee (Presiding Justice)