Whether a special appeal can be made by asserting that there has been a violation of law that affected the judgment (negative), and the scope of the judgment of the Supreme Court in a special appeal case

According to Article 449(1) of the Civil Procedure Act, a party whose right to a fair trial as provided for in Article 27 of the Constitution may file a special appeal in a trial proceeding, but the assertion that there was a violation of law that has influenced the trial does not constitute legitimate special appeal grounds. In addition, in a special appeal case that contests the legitimacy of litigation requirements, such as jurisdiction, the Supreme Court should examine only whether there was a special appeal, including a violation of the Constitution that has affected the judgment by the court below or the order, and the judgment of the court below cannot be reversed solely on the ground that there was a mere violation of law.

Article 49(1) of the Civil Procedure Act, Article 27 of the Constitution

Supreme Court Order 2003Ga136 Decided June 25, 2004 (Gong2004Ha, 1302) Supreme Court Order 2004Ga168 Decided April 18, 2006 (Gong2008Sang, 298) 2007Ga18 Decided January 24, 2008 (Gong2008Sang, 298)

Special Appeal Board (Law Firm Pyeongtaekro, Attorneys Yellow-man et al., Counsel for the defendant-appellant)

Bad Co., Ltd.

Seoul Eastern District Court Order 2007Ma544 dated March 14, 2007

The special appeal is dismissed.

The grounds of special appeal are examined.

1. Article 449(1) of the Civil Procedure Act provides that "Special appeal may be made only to the Supreme Court on the ground that there exists a violation of the Constitution that affected the judgment with respect to an order, rule, or disposition which is the premise of the judgment, or that the judgment is unreasonable." Thus, a party whose right to a fair trial as stipulated in Article 27 of the Constitution may file a special appeal in the above trial proceedings, but the mere assertion that there exists a violation of law affecting the judgment does not constitute a legitimate special appeal (see Supreme Court Order 2003Da136, Jun. 25, 2004; Supreme Court Order 2004Da168, Apr. 18, 2006; Supreme Court Order 2004Da168, Jan. 24, 2008; etc.); and the Supreme Court Decision 2007Da18, Jan. 24, 2008, etc. does not affect the conclusion of the judgment of the lower court on the ground that there exists a legitimate judgment, including a special appeal.

Meanwhile, according to the Judicial Conciliation of Civil Disputes Act, a party to a civil dispute may file an application for conciliation with a court (Article 2). In such a case, the district court, the branch court of the district court, the branch court of the district court, the Si court or the Gun court having jurisdiction over the respondent’s domicile, office or place of business, the object of the dispute, etc., shall generally become the competent court (Article 3(1)), but the competent court may be determined by mutual agreement between the parties (Article 3(2)). However, where the conciliation judge recognizes that the case does not fall under its jurisdiction, he/she shall, in principle, transfer the case to the competent court, but where there are special circumstances, such as where it is particularly necessary for resolution of the case, he/she may not transfer the case (Article 4(1)). If it is deemed reasonable even if the case falls under its jurisdiction, he/she may, ex officio or upon request by a party, transfer it to another competent court (Article 4(2)). The parties concerned may not object to the above decision (Article 4(3).)

2. According to the records, on March 8, 2007, the special appellant filed an application for mediation against the respondent for the payment of KRW 110,30,000 against the court below (Seoul Eastern District Court 2007Ma544), and the special appellant (1) who entered into a contract for the supply of the commercial buildings on the land (hereinafter "the commercial buildings of this case") outside 27-7 and 2 lots of Songpa-dong, Songpa-gu, Seoul (hereinafter "the commercial buildings of this case") with the respondent as the primary ground for filing an application for mediation, the special appellant asserted that the contract of this case was cancelled due to fraud or mistake and thus, he sought part of the claim for damages. (2) The special appellant asserted that the contract of this case was cancelled on the ground of the cancellation of the contract of this case on the ground of fraud or mistake, and the contract of this case submitted with the special appellant stated that "the court having jurisdiction over the location of the commercial building of this case shall be the court having jurisdiction over the jurisdiction over the location of the headquarters of this case."

Examining the above facts in light of the legal principles as seen earlier, since the court of original judgment can be the competent court for this case based on the agreement between a special appellant and the respondent, the part of the court below's decision that the case does not fall under its jurisdiction cannot be deemed appropriate.

However, in light of the legal principles as seen earlier, the Busan District Court having jurisdiction over the location of the respondent at the time of filing an application for conciliation by a special appellant also constitutes a competent court for this case, and the conciliation judge may transfer the case to another competent court at his own discretion if it is deemed reasonable. Thus, although there is room for doubt as to whether the procedure for the decision of transfer in this case is appropriate, it is difficult to conclude that the conclusion of the order of the court below is unlawful. The circumstance that the location of the respondent was changed after the order of the court below is inappropriate does not affect the legitimacy. Furthermore, even if the court below's decision or its procedure was inappropriate, it cannot be said that the reason for special appeal under Article 49 (1) of the Civil Procedure Act, such as the violation of the Constitution, which affected the court having jurisdiction over the general jurisdiction of the respondent, is acknowledged.

3. Therefore, the special appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)