관할위반을 이유로 한 이송결정과 이에 대한 즉시항고 및 재항고- 대법원 2018. 1. 19.자 2017마1332 결정을 중심으로 -

초록

Where a court finds that the whole or part of a lawsuit does not fall under its jurisdiction, on its own motion a court shall transfer such lawsuit by its ruling to the competent court(Korean Code of Civil Procedure §34 ①, hereafter called KCCP). And an immediate miscellaneous appeal may be raised against a ruling of a transfer and that of the rejection of a request for transfer(KCCP §39). Whereas a court may, if deemed necessary to avoid any significant damage or delay even where a lawsuit falls under its jurisdiction, transfer the whole or part of such lawsuit to another competent court either ex officio or by its ruling upon request of the concerned parties(KCCP §35). The Korean Supreme Court in this case dismissed the re-appeal filed by the re-appellant based on that re-applicant has no title to apply transfer order on account of violation of jurisdiction. However, it is still sharply divided whether a party could have the right to apply transfer order among academic circles. Also, this case handles the transfer order that could be appealed by KCCP §39 even though the party has no right to apply transfer the case. However, the Korean Supreme Court holds that re-appeal is not legal because appellate court revoked the transfer order of court of the first instance and the Korean Supreme Court thought this means that dismiss the transfer application by the party who has not title to apply transfer application on account of violation of jurisdiction. This legal interpretation of the Korean Supreme Court is very unreasonable because re-appeal of this case is for the transfer order that was originally appealable according to the KCCP §39. The Korean Supreme Court construed KCCP §39 so narrowly and infringed the right of the party to appeal for the transfer order and rejection of transfer application. The party could appeal and re-appeal for the transfer order or rejection of the transfer application on account of violation of the jurisdiction if the court pronounce the judgment even if the party could not have the right to appeal for the transfer order or rejection of the transfer application on account of violation of the jurisdiction. This interpretation should be reasonable for the protection of the party’s appeal right.

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