[부당이득금등][공2013상,754]
In cases where a creditor subrogation lawsuit instituted by a bankruptcy creditor is pending in the court at the time that the debtor is declared bankrupt, whether the lawsuit is interrupted and the trustee in bankruptcy may take over (affirmative in principle)
In a creditor subrogation lawsuit, the Plaintiff exercises his/her right to a third party obligor under his/her name on behalf of the debtor in order to preserve his/her own rights against the debtor. Thus, his/her status may be deemed the same as the case where the debtor himself/herself is the plaintiff. However, when the parties to the lawsuit are declared bankrupt, the litigation procedures relating to the bankrupt foundation are suspended (Article 239 of the Civil Procedure Act); and any bankruptcy creditor is prohibited from exercising any bankruptcy claim without resorting to bankruptcy procedures (Article 424 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “the Debtor Rehabilitation Act”). Furthermore, all assets owned by the debtor at the time that the debtor is declared bankrupt belong to the bankrupt estate. The debtor is deprived of his/her right to manage and dispose of the bankruptcy estate and the right to manage and dispose thereof belongs to the bankruptcy creditor (Articles 382(1) and 384 of the Debtor Rehabilitation Act). Thus, the right to manage and dispose of any third party’s rights over the debtor who was subrogated by the debtor declaration of bankruptcy falls under the scope of the creditor subrogation lawsuit under Article 407 of the Debtor Rehabilitation Act.
Article 404 of the Civil Act; Article 239 of the Civil Procedure Act; Articles 347(1), 382(1), 384, 406, and 424 of the Debtor Rehabilitation and Bankruptcy Act
The Nonparty in bankruptcy trustee of the Nonparty, the bankruptcy debtor of the Credit Guarantee Fund.
Defendant 1 and one other
Seoul High Court Decision 2012Na14168 decided October 12, 2012
All appeals are dismissed. The costs of appeal are assessed against the Defendants.
1. First, an application for resumption of a lawsuit is deemed to be filed.
As the Plaintiff exercises his/her right to a third party obligor in his/her name in order to preserve his/her own right to the debtor in a subrogation lawsuit, his/her status may be deemed the same as the case where the debtor himself/herself is the plaintiff. However, when the parties to the lawsuit are declared bankrupt, the litigation procedures relating to the bankruptcy foundation are suspended (Article 239 of the Civil Procedure Act); and any bankruptcy creditor is prohibited from exercising any bankruptcy claim without resorting to bankruptcy procedures (hereinafter “Bankruptcy Act”). Furthermore, all assets owned by the debtor at the time that the debtor is declared bankrupt belong to the bankruptcy estate. The debtor is deprived of his/her right to manage and dispose of the bankruptcy estate and the right to manage and dispose thereof belongs to the bankruptcy trustee (Articles 382(1) and 384 of the Debtor Rehabilitation Act). Thus, the right to manage and dispose of the rights of the debtor to a third party who was subrogated by the debtor’s declaration of bankruptcy shall also be deemed to belong to the trustee in bankruptcy, barring special circumstances under Article 406(1)4 of the Debtor Rehabilitation Act, if the debtor is declared bankrupt.
2. Next, we examine the grounds of appeal.
According to the reasoning of the judgment below, the court below acknowledged the facts as indicated in its reasoning based on the adopted evidence, and found that the non-party purchased each of the instant real estate and held the title trust to Defendant 2, and on this premise, acknowledged the duty of return of unjust enrichment by Defendant 2 on the premise that the non-party purchased each of the instant real estate, and held that the mortgage contract of this case as to the instant building was null and void based on the false agreement, and that the mortgage contract of this case as of June 2
In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error of law that affected the conclusion of the judgment due to misunderstanding of legal principles as to secured claims, false conspiracy or fraudulent act of collateral security, or misunderstanding of facts due to incomplete hearing
3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim So-young (Presiding Justice)