The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

Judgment ex officio is made.

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 the judgment to institute a retrial.

(Article 451(3) and 453(1) of the Civil Procedure Act. Therefore, a lawsuit for retrial filed in the first instance court against the judgment of the first instance, which is not the appellate court judgment, is not the subject of retrial, and is an illegal lawsuit lacking the litigation requirements for retrial and cannot be deemed as a lawsuit violating the jurisdiction of retrial merely.

However, whether a lawsuit filed in an appellate court against a case where a judgment on the merits was rendered at the appellate court is subject to the judgment of the first instance or is subject to the judgment of the appellate court should not be determined with only an indication of the judgment on retrial stated in the petition for retrial, but it should be determined by examining the arguments stated in the grounds for retrial and taking into account the intent of the party who filed the petition for retrial. Even if the petition for retrial specifies the judgment of the first instance as a judgment subject to retrial, if the grounds for retrial alleged in the grounds for retrial are recognized as pertaining to the judgment of the appellate court (the same shall also apply to cases where the grounds for retrial are common to the judgment of the appellate court and the judgment of the first instance), it is reasonable

to the appellate court, which is the competent court for retrial, shall not be dismissed.

(See Supreme Court en banc Decision 83Meu1981 delivered on February 28, 1984, etc.). However, when the first instance court did not take such a measure and tried on the merits, and subsequently dismissed the lawsuit, and the case is lawfully pending in the appellate court upon an appeal by the plaintiff for retrial.