[1] Whether a disposition to impose indemnity under Article 87(1) of the Local Finance Act is a binding act (affirmative), and the court of first instance having jurisdiction over the appeal suit against the above disposition (=administrative court having jurisdiction over the location of the defendant)

[2] Whether the binding force of the decision of transfer in violation of the jurisdiction of the court of higher instance reaches the court of higher instance to which the transfer was transferred (negative), and the measures to be taken by the court of higher instance (=transfer)

[1] Unless special provisions exist as to the jurisdiction of an appeal litigation under other Acts, the jurisdiction of the first instance court is an administrative court having jurisdiction over the location of the defendant (Article 9(1) and Article 38 of the Administrative Litigation Act), and Article 87(1) of the Local Finance Act cannot be collected from the person who occupies, uses, or benefits from the public property without permission for loan, use, or profit-making, etc. under other Acts. Thus, the amount calculated by adding 20 percent to the loan amount to be paid in the case of loan, etc. is an administrative disposition imposing the compensation amount, which is equivalent to the loan amount to be paid in addition to the loan amount to be paid in the case of loan, as the administrative disposition imposing the compensation amount, which is deemed as a punitive meaning for illegal occupancy, and the discretion of the disposition agency is not allowed in view of the legal form and form. The collection disposition of the fee amount under Article 127 of the Local Autonomy Act differs from the grounds, requirements for establishment, etc. Therefore, each provision of Article 131 of the Local Autonomy Act, which provides otherwise, cannot be applied mutatis mutandis to the procedure of appeal.

[2] Since the binding force of the decision of transfer in violation of the jurisdiction of the court of original instance does not extend to the court of original instance to which the transfer was made, the court of original instance to which the transfer was taken should transfer the

[1] Article 87(1) of the Local Finance Act, Articles 127 and 131(5) of the Local Autonomy Act, Article 1 [general administrative disposition], Articles 2, 9(1), 27, 35, and 38(1) of the Administrative Litigation Act / [2] Article 34 of the Civil Procedure Act, Articles 1 [general administrative disposition], 2, 8(2), 9(1), 27, 35, and 38(1) of the Administrative Litigation Act

[1] Supreme Court Decision 87Nu1046, 1047 decided Feb. 23, 198 (Gong1988, 616) Supreme Court Decision 91Da42197 decided Apr. 14, 1992 (Gong1992, 1581), Supreme Court Decision 92Nu14 decided Sep. 14, 1992 (Gong1992, 2910), Supreme Court Decision 93Nu13865 decided Sep. 10, 1993 (Gong1993Ha, 280), Supreme Court Decision 93Nu7341 decided Nov. 26, 1993 (Gong1994, 1994), Supreme Court Decision 97Nu29849 decided Sep. 25, 1994 (Gong29985 decided Nov. 26, 1995)

Plaintiff

The head of Yongsan-gu Seoul Metropolitan Government

Seoul High Court Decision 98Nu14565 delivered on August 25, 1999

The judgment below is reversed. The case is transferred to the Seoul Administrative Court.

ex officio deemed.

1. According to the records, on the ground that the plaintiff occupied and used part of the land of this case without permission, the defendant imposed indemnity against the plaintiff pursuant to Article 87 (1) of the Local Finance Act, and the plaintiff appealed to the Seoul Administrative Court. However, the same court decided to transfer the remainder of the case which the court of first instance judged to be the Seoul High Court in accordance with Article 131 (5) of the Local Autonomy Act as to the procedure for objection to the disposition of this case, and the same court rejected the plaintiff's claim of this case on the ground that the plaintiff's claim of this case was not justified.

2. However, unless there are special provisions regarding the jurisdiction of appeal under other Acts, the jurisdiction of the first instance court is an administrative court having jurisdiction over the location of the defendant (Article 9(1) and Article 38 of the Administrative Litigation Act). The disposition of this case and the disposition of imposing indemnity under Article 87(1) of the Local Finance Act cannot be collected from the person who occupies, uses, or benefits from public property without permission for loan, use, or profit-making, etc. under Acts. Thus, the administrative disposition imposing on behalf of the person who has obtained loan, etc., the amount equivalent to 20% of the loan charges, in addition to the loan charges to be paid, shall be deemed as an administrative disposition imposing indemnity, which has a punitive meaning for illegal occupancy, and the discretion of the disposition agency is not allowed in view of legal form (see, e.g., Supreme Court Decisions 97Da47651, Nov. 24, 198; 98Du7602, Sept. 22, 1998; 2000Du114).

Therefore, the court of first instance of the lawsuit of this case is the Seoul Administrative Court. The court of first instance which applied Article 131(5) of the Local Autonomy Act to the same case, which misleads that the court of first instance has jurisdiction over the Seoul High Court, and transfers the case to the same court. The binding force of the transfer decision in violation of the court of first instance does not extend to the court of the higher court to which the case was transferred (see, e.g., Supreme Court Order 94Ma1059, 1060, May 15, 1995; Supreme Court Order 95Nu8867, 8874, Feb. 23, 1996). The court of first instance to which the case was transferred should have again transferred the case to the Seoul Administrative Court on the ground that the transfer decision of this case was unlawful.

Nevertheless, the court below's decision to dismiss the claim of this case after hearing the case as the competent court of the first instance is not erroneous in the misunderstanding of legal principles as to the binding force of administrative litigation jurisdiction and transfer decision, which affected the conclusion of the judgment.

3. Therefore, without examining the grounds of appeal, we reverse the judgment of the court below without examining the grounds of appeal, and since the court of first instance is the Seoul Administrative Court, it is obvious as seen earlier, the court of first instance, who is the Seoul Administrative Court, decides to sell the case to the same court pursuant to Article 407 subparagraph 1 of the Civil Procedure Act. It is so decided as

Justices Lee Yong-hun (Presiding Justice)