Media temperature Co., Ltd.

Other party (Supreme Court Decision : Re-Appellant)

Suwon District Court Order 2017 Ghana4517 dated June 14, 2017

The decision of the first instance shall be revoked.

1. Facts recognized by records, etc.;

A. On February 18, 2008, the creditor entered into a △△TV service contract (hereinafter “instant contract”) with the non-party operating the ○○○○○○○○○○○○○○○○○○○ ( Address omitted) located in Changwon-si (hereinafter “the instant telecom”). Article 12 of the contract provides that “The period of the contract shall be extended automatically every one year when the parties concerned do not raise any objection) and that the creditor would provide △△TV 2 channel images, lease the receiving equipment, etc. and receive the fees in return.” Article 5 of the contract of this case provides that “In the event of transfer or transfer of the right to use, the transfer of the right to use shall be notified to the plaintiff and obtain the approval.” Article 5 of the contract of this case provides that “Any dispute arising in connection with the instant contract shall be resolved through the competent court of the non-party.”

B. On August 2016, the debtor acquired all of the instant apartment complex building and its appurtenant facilities, etc. from the non-party, and the creditor requested the debtor from January 2017 to return the unauthorized Use Fee and the received equipment on several occasions, but the debtor refused it (the plaintiff demanded the defendant to return the equipment and the return the unauthorized Use Fee, and the defendant argued that the defendant did not know whether the equipment exists, and that the equipment was not used).

C. The obligee asserted that the obligor refuses to return the obligee’s TV services and receiving equipment without any title, and filed the instant lawsuit. The obligee and the obligor did not assert the assignment and succession of the right to use under Article 5 of the instant contract.

D. The court of first instance rendered a decision to transfer the instant lawsuit to the Changwon District Court pursuant to Article 34(1) of the Civil Procedure Act on the grounds that the instant lawsuit does not fall under the jurisdiction of the Suwon District Court, and is recognized as the jurisdiction of the Changwon District Court Support.

2. Summary of grounds for appeal;

The lawsuit of this case is a lawsuit seeking restitution of unjust enrichment on the ground that the defendant, while taking over the instant telecom from the non-party without the plaintiff's consent, occupied and used without permission by the non-party to take over the receiving equipment, etc. owned by the defendant. Therefore, even if there was a jurisdictional agreement to resolve the dispute through the competent court (the Changwon District Court Branch Branch Branch Branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch) of the non-party's domicile in the contract of this case, the above jurisdictional agreement is not applicable to the lawsuit of this case, and it is not applicable to the Suwon District court branch branch branch branch branch branch at the plaintiff'

3. Determination

In principle, the agreement of jurisdiction is an act under the Civil Procedure Act, which does not affect a third party, excluding the parties to the agreement and their general successors. However, if the agreement of the parties on jurisdiction is practically and legally deemed to be changed by the agreement of the parties on jurisdiction, it can be said that the substantive understanding attached in the relationship of rights is changed as a condition of exercise of rights. Thus, if parties can freely determine the contents of the relationship of rights, such as nominative claim, the specific successor in the relationship of rights is deemed to succeed to the changed relationship of rights so that the agreement of jurisdiction extends to a specific successor (see Supreme Court Order 2005Ma902, Mar. 2, 2006).

However, in light of the following circumstances revealed in the above facts, i.e., the Plaintiff asserted that the Defendant occupied and used the instant contract without any title, even after the Defendant acquired the instant franchise from the Nonparty, and the Defendant also did not assert that the Defendant transferred or succeeded to the instant contract from the Nonparty, and there was no objective data to recognize that the obligor or the Nonparty notified the obligee of the transfer or succession of the instant contract, or that the obligee consented to the transfer or succession thereof, it is difficult to regard the Defendant as a specific successor to the instant contract, and there is no ground to deem otherwise that the jurisdiction agreement between the obligee and the Nonparty under the instant contract extends to the obligor.

Meanwhile, according to the above facts, it is reasonable to view the lawsuit of this case as a lawsuit for the claim for return of unjust enrichment on the ground that the defendant occupies or uses the receiving equipment, etc. owned by the defendant without the plaintiff's consent. Since obligations other than delivery of specific objects should be at the present address of the creditor, it is under the jurisdiction of the court of the place where the obligation is performed as a branch court of the Suwon District Court having jurisdiction over the plaintiff's domicile. Accordingly, the decision of the court of first instance that transferred the lawsuit of this case

4. Conclusion

If so, the decision of the first instance court is unfair, and it is decided as per Disposition.

Judges Go Young-gu (Presiding Judge) Babbs Babs