【Holding】
[1] Meaning of "claim for damages on the ground of divorce" under Article 2(1)1(c)2 of the Family Litigation Act / Whether a claim clearly seeking civil damages by treating a specific individual wrongful act that occurred during marital cohabitation, unrelated to divorce, as a tort falls under a "claim for damages on the ground of divorce" (negative) / Where the plaintiff, having claimed civil damages by treating a specific individual wrongful act that occurred during marital cohabitation, unrelated to divorce, as a tort, changes the cause of action to a "claim for damages on the ground of divorce" by treating that specific wrongful act as part of the wrongful acts causing the divorce and treating the entire series of events up to the final divorce as a tort, whether this constitutes an amendment of the suit (affirmative), and whether the amendment should be regarded as a substitutive one (affirmative, in principle)
[2] Where, due to a change in the cause of action, jurisdiction has changed from a civil damages case to a family litigation case under Article 2(1)1(c) of the Family Litigation Act, and the value of the subject matter of the amended claim falls within the same jurisdictional range, whether the collegiate division of the main district court handling the appellate case of the civil damages case must transfer the case to the main family court having jurisdiction pursuant to Article 34(1) of the Civil Procedure Act (affirmative), and whether the collegiate division of the main family court to which the case is transferred must hear and decide the case as the appellate court for the judgment of first instance rendered by a single judge of the district court (affirmative)
[3] Method of stating the disposition where there is a substitutive amendment of the suit at the appellate instance
【Summary of Decision】
[1] Article 2(1)1(c)2 of the Family Litigation Act designates a "claim for damages on the ground of divorce," including a claim against a third party, as a Category Da family litigation case (hereinafter "Category Da family litigation case"). Here, a "claim for damages on the ground of divorce" refers to a case in which damages are claimed by treating the entire series of events, from the occurrence of the individual wrongful acts causing the divorce to the final divorce, as a tort. In contrast, where it is clear that the claim seeks civil damages by treating a specific individual wrongful act that occurred during marital cohabitation, unrelated to divorce, as a tort, it cannot be regarded as a Category Da family litigation case.
Even where two subject matters of litigation are based on the same facts, they are separate subject matters of litigation if their causes of action differ, and such a change in the cause of action constitutes an amendment of the suit.
Therefore, where the plaintiff, having claimed civil damages by treating a specific individual wrongful act that occurred during marital cohabitation, unrelated to divorce, as a tort, changes the cause of action to a Category Da family litigation case claiming damages by treating that specific wrongful act as part of the wrongful acts causing the divorce and treating the entire series of events up to the final divorce as a tort, this constitutes an amendment of the suit, and absent special circumstances, the amendment should be regarded as a substitutive one.
[2] Where the value of the subject matter of the amended claim falls within the same jurisdictional range, it suffices for the collegiate division of the main district court handling the appellate case of the civil damages case to transfer the case to the main family court having jurisdiction pursuant to Article 34(1) of the Civil Procedure Act, and for the collegiate division of the main family court to which the case is transferred to hear and decide the case as the appellate court for the judgment of first instance rendered by a single judge of the district court. The reasons are as follows.
① Where, as a result of a substitutive amendment of the suit, the case becomes a family litigation case under Article 2(1)1(c) of the Family Litigation Act, the case falls under the exclusive jurisdiction of the family court pursuant to Article 2(1) of the Family Litigation Act, and thus must be transferred to the family court, which is the competent court, pursuant to Article 34(1) of the Civil Procedure Act.
② Article 419 of the Civil Procedure Act purports that, where the first instance involved a violation of jurisdiction, the judgment of first instance shall be revoked and the case transferred to the competent court; accordingly, the judgment of first instance rendered by a single judge of the district court before the substitutive amendment of the suit contains no error of violating exclusive jurisdiction. It cannot be said that the judgment of first instance must be revoked and the case transferred to the competent court by judgment on account of a violation of exclusive jurisdiction that arose subsequently at the appellate instance.
③ If the family court to which the case is transferred were required to hear the case anew from the first instance, the effect of the judgment of first instance already validly rendered by a single judge of the district court would be lost due to the fortuitous and subsequent circumstance of a substitutive amendment of the suit at the appellate instance, which would significantly undermine the predictability of litigation procedures and legal stability.
④ Requiring the case to be heard anew from the court of first instance merely because a substitutive amendment of the suit accompanied by a change in exclusive jurisdiction was made at the appellate instance is not only inconsistent with the case of a substitutive amendment not accompanied by a change in exclusive jurisdiction, in which the appellate court continues to hear the new claim without transferring the case to the court of first instance, but is also unacceptable in that it would effectively create an instance solely by the will of the parties without any statutory basis.
[3] Where the suit is substitutively amended at the appellate instance, the former claim is withdrawn and the corresponding judgment of first instance loses its effect, and only the new claim becomes the subject of adjudication at the appellate instance; thus, the appellate court must render a judgment on the new claim. Where the court of first instance dismissed the plaintiff's claim and the appellate court dismisses the substitutively amended new claim, the disposition must state "The plaintiff's claim is dismissed," and must not state "The appeal is dismissed."
【Referenced Statutes】
[1] Article 2(1)1(c) of the Family Litigation Act; Article 262(1) of the Civil Procedure Act [2] Article 2(1) of the Family Litigation Act; Articles 34(1), 262(1), 408, and 419 of the Civil Procedure Act [3] Articles 262(1), 408, and 414 of the Civil Procedure Act
【Referenced Precedents】
[1][3] Supreme Court Decision 96Da25449, 25456, June 10, 1997 (Gong1997Ha, 2125)
Supreme Court Decision 2010Da20846, June 24, 2010
Supreme Court Decision 2025Da209948, June 5, 2025
[1] Supreme Court Decision 88Da1936, March 28, 1989 (Gong1989, 669)
Supreme Court Decision 2005Da9760, 9777, September 11, 2008
Supreme Court Decision 2021Da253154, 253161, November 25, 2021
(Source: Supreme Court Decision 2024Meu12628, July 16, 2026 | Judicial Information Disclosure Portal, Precedents)
2026. 10. 14. · By Attorney Dongwoo Shin
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