1. Whether the judgment prior to remand corresponds to the previous trial after remand.

2. Whether Article 406 (3) of the Civil Procedure Act applies mutatis mutandis where the appellate court has remanded the original decision.

1. The previous trial referred to in Article 37 subparagraph 5 of the Civil Procedure Act refers to a lower court judgment directly or indirectly, and the previous trial of the same court after remand cannot be deemed to be the previous trial of the previous trial before remand.

2. Where an appellate court revokes the original decision and remands the case to the lower court, Article 406(3) of the Civil Procedure Act shall not apply mutatis mutandis.

Articles 37 and 406 of the Civil Procedure Act

Plaintiff 1 and one other

Defendant corporation

Jeonju District Court Decision 73 Gohap110

The appeal is dismissed.

The gist of the grounds of appeal No. 1 is that the appellant filed an application for the transfer of this case to the court of original on October 20, 1973, but the appellant was dissatisfied with the decision of November 15, 1973 that the application for transfer was dismissed and the appeal was dismissed, and the case was remanded to the court of original judgment, and the above case was remanded to the court of original judgment. However, the judge who participated in the original decision prior to the remand did not participate in the trial of the case of the request for transfer, the original decision that the judge involved in the original decision prior to the remand and dismissed the application for transfer was unlawful.

The second point is that in order to avoid the delay of litigation economy and litigation, the second point was to have the decision to transfer this case to the Youngpo District Court of Seoul, which is the legal location of the defendant's general forum, but the original decision dismissing this case is unfair.

Therefore, according to the records as to the first ground for appeal, the court below determined to revoke the original decision on November 15, 1973 on the ground that the appellant raised an immediate appeal against the defecter's rejection of the application for the transfer of this case, and the Gwangju High Court, the appellate court, was erroneous in the litigation procedure. Accordingly, after the case was remanded to the court below, the court below determined to dismiss the application again by participating in the judge who was involved in the judgment on the application for the transfer of this case before remanding the case.

However, in Article 37 subparagraph 5 of the Civil Procedure Act, the so-called "former trial" refers to a lower court's directly or indirectly, and the procedure of the previous higher court's trial cannot be deemed to be a previous trial, and it cannot be deemed to violate the above Article of the Civil Procedure Act since the judge involved in the original decision was involved in the same case after remanding the original decision, such as the above recognition, and thus, it cannot be deemed to violate the above provision of the above Act. In addition, the case where the Gwangju High Court returns the original decision to the court of first instance which is the appellate court, the first instance court, the application of the provisions of Article 406 (3) of the Civil Procedure Act cannot be adopted merely because it is an independent opinion.

In light of the record on the second ground of this, it is recognized as having jurisdiction over the claim for damages which is the principal case to the court below, and the record is examined that there is no proof that the transfer of the case is necessary to avoid significant damage or delay, i.e., there is no argument.

Therefore, the original decision is just and without merit, and the appeal is dismissed. It is so decided as per Disposition.

Judges Park Young-young (Presiding Judge)