[2] In a case where an attorney who failed to obtain the right necessary for filing a petition of appeal submitted a petition of appeal, but the party or lawful attorney testified in the appellate court as to the merits, whether the act of filing a lawsuit was ratified (affirmative)

[2] Even if a petition of appeal was submitted by a legal representative whose authorization required for filing an appeal was defective, if the party or legal representative testified on the merits in the appellate court, it shall be deemed that the act of filing an appeal was ratified. Thus, the appeal shall be deemed to have been lawful by the party concerned.

1. On the grounds indicated in its reasoning, the lower court rejected the instant appeal on the grounds that the instant appeal filed by ○○○, without undergoing the taking-over procedure under the status of having been suspended due to a declaration of bankruptcy, was unlawful.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. A lawsuit claiming the existence of an obligation against a creditor falls under a lawsuit concerning the property belonging to the bankrupt estate, and thus, if a bankruptcy is declared against the bankrupt debtor, the lawsuit proceedings relating thereto shall be interrupted as a matter of course until the bankruptcy trustee or the other party takes over pursuant to Article 347 of the Debtor Rehabilitation and Bankruptcy Act. On the other hand, in a case where the grounds for suspending the litigation proceedings are limited and the pleadings are concluded and the judgment is rendered after the closure of pleadings, the judgment shall result in the exclusion of the legitimate taking-over person’s authority who can participate in the lawsuit, and shall not be deemed unlawful, but shall not be deemed null and void as a matter of course. The lawsuit seeking the revocation by an appeal or retrial for the lack of power of representation, as in the case where the proceedings are not taken by an agent, and if the proceedings are taken by the appellate court, the defect in the above proceedings shall be cured and the taking-over and appeal shall be deemed lawful (see Supreme Court Decision 9Da8971, Dec. 28,

Even if a petition of appeal was submitted by a legal representative lacking the authorization necessary for filing an appeal, if the party or legal representative testified on the merits in the appellate court, it shall be deemed that the act of filing an appeal was ratified. Thus, such appeal shall be deemed to have been lawful by the party concerned (see Supreme Court Decision 2006Da81653, Feb. 22, 2007).

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

(1) After filing the instant lawsuit, ○○○○ filed the instant lawsuit, and subsequently received the decision to commence the rehabilitation procedure at the Seoul Rehabilitation Court. The principal is deemed as the custodian of the rehabilitation debtor, and ○○○○○○○○○ filed a request to resume the proceedings at the first instance trial and took over the instant lawsuit.

(2) The Seoul Rehabilitation Court rendered a decision to discontinue the above rehabilitation procedures, and the ○○○○○○ custodian of the rehabilitation debtor filed an application for bankruptcy and immunity with the Seoul Rehabilitation Court. Accordingly, the bankruptcy was declared against the debtor ○○○○○○○○.

(3) The first instance court rendered a judgment to dismiss the Plaintiff’s claim after the closure of the pleadings with excessive filing of the above declaration of bankruptcy, and subsequently filed an appeal under the name of “Plaintiff ○○○○○”.

(4) During the trial of the court below, there was a decision to discontinue the bankruptcy of ○○○ during the proceeding, and accordingly, the Plaintiff’s attorney filed an application to resume the proceedings at the court below’s fourth date for pleading, and at the hearing at the court below’s fourth date for pleading, stated to the effect that “the petition of appeal submitted by ○○○○ was a legitimate appeal by the said application to

C. Examining the above facts in accordance with the relevant statutes and the legal principles as seen earlier, the lawsuit of objection of this case filed by a bankrupt debtor against a creditor constitutes a lawsuit on the property belonging to the bankrupt estate, and thus, the proceedings of the first instance are interrupted when ○○○○ was declared bankrupt. Nevertheless, the first instance court rendered a judgment by passing a lawsuit without passing through a lawful takeover procedure, and ○○○○ filed an appeal of this case without filing an appeal. However, when the bankruptcy procedure is terminated during the course of the lower judgment, the Plaintiff naturally takes over the lawsuit (the latter part of Article 239 of the Civil Procedure Act), and the attorney appointed by the Plaintiff may be deemed to have ratified all the previous proceedings of the first instance court and the lower court, and thus, the appeal of this case becomes retroactively effective at the time of its filing (Article 60 of the Civil Procedure Act).

D. Nevertheless, based on its stated reasoning, the lower court erred by misapprehending the legal doctrine on the ratification of procedural acts and the recovery of defects in litigation procedures, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)