(a) Appellate trial against a judgment rejecting the request for transfer due to lack of jurisdiction;

(b) Where the appellate court has rendered a decision to dismiss the appeal under the above subparagraph (a), the legality of the reappeal;

[Majority Opinion]

A. Even if the parties have filed an application for transfer on the ground of lack of jurisdiction, it is only the meaning of demanding the ex officio movement of the court. Accordingly, the court does not need to render a judgment on the application for transfer, and even if the court rendered a judgment rejecting the application for transfer, the appeal shall not be allowed, so the appeal shall be dismissed in the appellate court.

B. Even though the above "A" did not dismiss a complaint at the appellate court, and the decision to dismiss the appeal by making a decision on the legitimacy of the grounds for the appeal was made, the decision to dismiss the appeal does not disadvantage the appellant, and thus, there is no benefit to re-appeal against the decision of the appellate court, so the reappeal against this decision is illegal.

[Dissenting Opinion]

A. Article 31(1) of the Civil Procedure Act provides that if the court recognizes that the whole or part of a lawsuit does not fall under its jurisdiction, it shall, by decision, transfer it to the competent court. This is not interpreted as the duty of the court protecting the defendant's interests, or as the purport of denying the defendant's right to

B. If a court renders a judgment to dismiss a request for transfer on the ground that the parties have no right to file a request for transfer on the ground of lack of legal violation of jurisdiction, at least objection should be allowed.

Articles 29 and 31(1) of the Civil Procedure Act

Supreme Court Order 80Ma242 dated June 23, 1980 (Gong1980, 12913) dated April 30, 1985 (Gong1985, 993) 87Ma1010 dated December 30, 1987 (Gong1988, 399)

Re-appellant

Jeju District Court Order 93Ra5 Dated March 16, 1993

The reappeal shall be dismissed.

According to the records of this case, the re-appellant applied for transfer to the court of first instance for the reason of the violation of jurisdiction, and the court of first instance dismissed the re-appellant's application without merit. When the re-appellant filed an immediate appeal against this, it is obvious that the court of first instance dismissed it on the ground that the court of

However, if it is recognized that there is no jurisdiction over the court of a lawsuit, and the court does not fall under its jurisdiction as a matter of ex officio investigation by the original court, it shall make a decision of transfer ex officio pursuant to Article 31 (1) of the Civil Procedure Act, and it does not have the right to request transfer to

Therefore, even in cases where the parties have filed a request for transfer for reasons of violation of jurisdiction, this does not mean that the request for transfer should be urged by the court. Accordingly, even if the court rendered a judgment of rejection of the request for transfer, it is not necessary to hold a trial, and even if the court rendered a judgment of rejection of the request for transfer, it should be dismissed by the appellate court. Even if the appellate court did not dismiss the appeal and made a decision of rejection of the reasons for the appeal, it does not give any disadvantage to the appellant, the decision of rejection of the appeal does not result in any disadvantage to the appellant, and thus, the reappeal against this decision of this appellate court is illegal (see, e.g., Supreme Court Order 69Ma191, Jan. 21, 1970; Order 72Ma1538, Feb. 14, 1973; Order 78Ma207, Jul. 20, 198; Order 200Ma384, Aug. 13, 2084).

Therefore, without making a decision as to the validity of the reappeal, the reappeal of this case is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench, except for Supreme Court Decision No. 2014, Dec. 1, 2010>

The Dissenting Opinion by Justice Song Man-chul, Justice Yoon Young-chul, and Justice Kim Jong-soo is as follows.

1. Article 31(1) of the Civil Procedure Act provides that when the court recognizes that the whole or part of a lawsuit does not fall under its jurisdiction, it shall, by decision, transfer it to the competent court. This is not an interpretation that the duty of the court protecting the interests under the jurisdiction of the defendant is prescribed, and that this is the purport of denying the defendant's right

The majority opinion argues that in the case of transfer to avoid discretion, damage or delay, Article 31 (2) and Article 32 (a) of the same Act explicitly provide for the party's right to request, but in the case of transfer due to the violation of jurisdiction, Article 31 (1) does not stipulate the party's right to request, and in the case of transfer due to the violation of jurisdiction, the party's right to request transfer is denied on the ground that the court originally examines the matter to be investigated by its own authority, but it should be examined and changed

In order to avoid discretion or damage or delay, there is no express provision of the law, so it is necessary to stipulate the basis of the law. However, in case of violation of jurisdiction, there is no room for the defendant to respond to the jurisdiction so long as the defendant contestss jurisdiction. In this case, regardless of the defendant's separate application for transfer, it is the duty of the court to transfer the lawsuit to the competent court to protect the defendant's interests. The defendant's right to request transfer does not have any explicit provision that recognizes the defendant's right to request transfer. Thus, the right to request transfer should not be the basis

2. The defendant's interests in the jurisdiction in civil procedure are legally recognized interests, and it is not a benefit that depends on the court's discretion. Therefore, it is rather reasonable to recognize the defendant's right to file an application for transfer to protect these legal interests and to answer the court's response to it, and it is the kind of court's attitude to interpret it and make a judgment on the application for transfer.

In addition, the defendant's argument about the defects in the requirements for a lawsuit must be responded to the court, and the propriety of the judgment should be subject to the examination of the appeal. If such interpretation is not interpreted as above, as long as it is not exclusive jurisdiction, the appellate court cannot assert the violation of jurisdiction of the first instance court pursuant to Article 381 of the same Act. Thus, the defendant is unable to assert the violation of jurisdiction of the first instance court pursuant to Article 381 of the same Act, and the defendant is unable to assert his/her objection to the judgment of the violation of jurisdiction, and even if he/she silents the argument about the violation of jurisdiction, the court has no intention to deny the defendant's right and interest in fact. In addition, in the case of exclusive jurisdiction, if the appellate court recognizes the violation of jurisdiction as the violation of jurisdiction in the appellate court, it may assist the economy of the lawsuit.

Therefore, with respect to the absence of jurisdiction, one of the requirements for a lawsuit, it is necessary to recognize the defendant's position to assert separately from the lawsuit on the merits before the final judgment is rendered, and the objection to the response should be allowed separately from the appeal on the merits.

3. In addition, the Civil Procedure Act recognizes the right to apply for a transfer to another court (Articles 31(2) and 32) and the right to apply for a trial to a court that has no jurisdiction (Article 31(3)), and opens a way to file an immediate appeal against a decision not to grant such a decision (Article 35). It is unreasonable to recognize the right to apply for a transfer and the right to file an immediate appeal to protect the defendant’s more important interests that the court with jurisdiction intends to have tried to have jurisdiction, as it goes against the balance.

In spite of the previous opinion of the party members like the majority opinion, we need to make a decision to respond to the motion for transfer on the ground of the violation of jurisdiction as in this case, and to respond to the objection, and to what extent the reappeal refers to the phenomenon that the reappeal case is not closed.

4. Furthermore, if the court did not have the right to file a request for transfer on the ground of the violation of the legal jurisdiction, and on the contrary, once the court decides to dismiss the request for transfer, it should be permitted to appeal at least. This is because the court's decision rejecting such request for transfer is fair and fair to allow objection and give an opportunity to correct it, and if not, it would be unfair to accept even if the decision dismissing the request for transfer was erroneous.

Article 35 of the same Act provides that an immediate appeal may be filed against a decision of transfer and a decision of rejection of a request for transfer. A decision of rejection of a request for transfer on the ground of lack of jurisdiction cannot be deemed as a decision of invalidity automatically, and there is no need to interpret the same by limiting the purport that the decision of rejection of a request for transfer under the same Act excludes a decision of rejection of a request for ex officio action. The majority opinion deems that an appeal against such judgment cannot be allowed and that there is no benefit in re-appealing is too narrow interpretation. The purport of the majority opinion is that the applicant is too narrow interpretation. The applicant for transfer should be deemed to have the benefit of the law

5. Therefore, the precedents cited by the majority opinion are discarded, and in this case, it is reasonable to determine the legitimacy of the grounds for re-appeal by entering the merits, and doing so is faithful to the duty of the court.

Justices Yoon Jong-tae (Presiding Justice)