(영문) 대법원 2017.9.21.선고 2017다21893 판결

1. When an appellate court rendered a judgment on the merits of a case, the appellate court did not institute a lawsuit on the judgment of the first instance, and the appellate court has exclusive jurisdiction over the court which rendered a judgment to institute a retrial (Articles 45(3) and 453(1) of the Civil Procedure Act). Therefore, a lawsuit filed in the first instance court with respect to the judgment of the first instance, which is not the appellate court judgment, is the subject of a judgment that is not the subject of retrial, and is illegal and unreasonable, which lack the litigation requirements for retrial and cannot be deemed as a lawsuit violating the jurisdiction of retrial. However, whether a lawsuit filed in the appellate court rendered a judgment on the merits of a case is subject to retrial or is subject to a judgment of the first instance court, should not be determined with only an indication of judgment on the grounds stated in the petition for retrial, but by considering the intention of the party who raised a retrial. Even if the appellate court stated the first instance judgment as the subject of retrial as the subject of a judgment for retrial, it is reasonable for the appellate court to lawfully dismiss the judgment of the first instance court (see Supreme Court en banc Decision 20819).

2. According to the records, the plaintiff (hereinafter referred to as "the plaintiff") was sentenced to the first instance court (Seoul Central District Court 2014Kadan216599) in a lawsuit claiming return of unjust enrichment against the defendant (hereinafter referred to as "the defendant"), and the plaintiff appealed, but the appellate court (Seoul Central District Court 2015Na30106) dismissed the appeal (hereinafter referred to as "the appellate court judgment of this case"), and the appeal (Supreme Court 2015Da61231) was also dismissed. The plaintiff was declared to dismiss the plaintiff's claim by submitting a written request for refusal of the opposite trade that was forged or altered by the defendant's employee and a transcript, etc.

3. Examining these factual relations in light of the legal principles as seen earlier, it is clear that the lawsuit of this case was subject to the judgment of the appellate court of this case, and therefore, it is reasonable to deem that the judgment of the first instance was erroneously indicated in the petition of retrial as the judgment of the appellate court of this case. Therefore, the lower court should revoke the judgment of the first instance that violated the exclusive jurisdiction, and review the case as the judgment of the appellate court of this case

Nevertheless, the lower court deliberated and determined whether or not the grounds for retrial of the first instance judgment of this case, which cannot be considered as the subject of review. In so doing, the lower court erred by misapprehending the legal interpretation of Articles 451(3) and 453(1) of the Civil Procedure Act, thereby affecting the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.