(영문) 대법원 2019.10.18.선고 2019다231953 판결

The judgment of the court of first instance shall be reversed, and the judgment of the court of first instance shall be revoked.The case shall be transferred to the Daegu District Court Panel Division.

Reasons

The judgment on the grounds of appeal shall be made ex officio.

1. Article 44(1) of the Civil Execution Act provides that “A debtor who intends to raise an objection against a claim finalized by a judgment shall file a lawsuit of demurrer against a claim with the court of judgment in the first instance.”

In this context, "court of the first instance judgment" refers to a court that has rendered a judgment on a claim that is to be realized by compulsory execution based on the judgment, i.e., the right to claim indicated in the judgment, which is an executive title, which is subject to the exclusive jurisdiction due to its nature as a separate jurisdiction (see, e.g., Supreme Court Decisions 2013Da80627, Apr. 7, 2017; 2015Da208344, Jun. 29, 2017). Meanwhile, Article 56 of the Civil Execution Act provides that "a party who has the same effect as a final and conclusive judgment, such as compromise in a lawsuit, recognition of a claim, etc." as one of the executive titles in subparagraph 5 of Article 56 of the Civil Execution Act provides that "Article 44 shall apply mutatis mutandis to compulsory execution based on the executive titles in Article 56 of the Civil Procedure Act, and Article 29 of the Judicial Conciliation of Civil Disputes Act provides that "a conciliation has the same effect as a judicial compromise."

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On June 17, 2015, the Defendant filed a lawsuit against the Plaintiff et al. for a claim against the Plaintiff et al., such as the transfer of shares and the procedure for registering the register of shareholders under Daegu District Court racing-gu 2015Gahap2492.

B. The said collegiate panel of the court referred the instant case to conciliation, and the conciliation was concluded on April 5, 2016 on the date of open conciliation.

C. On June 20, 2017, the Plaintiff filed a lawsuit against the Defendant for objection against the instant claim seeking non-performance of compulsory execution under Article 3(1) and (3) of the conciliation protocol prepared on April 5, 2016, and the Daegu District Court and racing support single judge rendered the first instance judgment on April 3, 2018.

3. Examining these facts in light of the legal principles as seen earlier, since the conciliation established on April 5, 2016 was adjusted by the Daegu District Court and the Daegu District Court and the racing support collegiate division, the court of the lawsuit for objection against the instant claim is subject to the exclusive jurisdiction of the Daegu District Court and the racing support collegiate division.

Nevertheless, the court below modified the remaining judgment of the court of first instance that the judgment of the court of first instance violated exclusive jurisdiction and accepted the Plaintiff’s claim. In so doing, the court below erred by misapprehending the legal principles on exclusive jurisdiction.

4. Therefore, without examining the grounds of appeal, the judgment of the court below is reversed, and the judgment of the court of first instance is revoked, and the case is transferred to the competent court. It is so decided as per Disposition by the assent of all participating Justices.