Plaintiff 1 and two others (Attorneys double-contest et al., Counsel for the plaintiff-appellant)

The bankruptcy trustee in the housing following the bankrupt corporation shall be Kim Jong-si (Attorney Kim Jong-chul, Counsel for plaintiff-appellant)

March 16, 2006

Busan District Court Decision 2005Kadan1700 Delivered on October 7, 2005

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. The total costs of the lawsuit are assessed against the plaintiffs.

1. Purport of claim

On January 17, 2005, the bankrupt Sam-Hy Housing Co., Ltd. shall implement the procedure for the transfer registration of ownership on the ground of the completion of the acquisition by prescription on January 17, 2005, with respect to the portion of the portion of the portion of the portion of the portion of the real estate listed in the separate list, of the portion of the portion of the

2. Purport of appeal

The judgment of the first instance is revoked and all of the plaintiffs' claims are dismissed.

1. Basic facts

The following facts are not disputed between the parties, or found in full view of Gap evidence 1, Gap evidence 2-1 through 3, Gap evidence 1, 2, Gap evidence 4-1 through 7, Gap evidence 5-1, 2, Gap evidence 6, Gap evidence 7-1 through 9, Gap evidence 8-1 through 10, Gap evidence 9-1 and 2, Gap evidence 9-2, and the whole purport of arguments.

A. Sam-gu Housing Co., Ltd. (hereinafter referred to as the "Tri-dong Housing") newly built two commercial buildings (A and B) on the ground of 313-154 square meters and 1,599 square meters (hereinafter referred to as the "the site in this case"). On June 19, 1976, Non-Party 1 sold each real estate listed in the separate sheet to Non-Party 2 on April 7, 1977, Non-Party 1 (hereinafter referred to as the "One Building"), Non-Party 2 as indicated in the separate sheet, and Non-Party 3, around 1977, sold the share of Non-Party 2 (hereinafter referred to as the "Building No. 2") as indicated in the separate sheet, and the share of Non-Party 3 sold to Non-Party 3 on March 28, 1978 and the share of Non-Party 3 sold to Non-Party 3 on March 28, 1978.

B. From April 26, 1978, Nonparty 2 occupied each building of this case Nos. 1 and 2 and died on July 11, 1993. From that time, Nonparty 2 occupied and used each building of this case Nos. 1 and 2 according to the inheritance ratio.

C. Each of the buildings Nos. 1 and 2 of this case is separated from the total commercial buildings to the extent sufficient to recognize that they belong to the possession of Nonparty 2, etc. from the date of sale to the date of completion of the pleadings of this case.

D. Meanwhile, the third-party house was declared bankrupt by the Seoul District Court on June 5, 200; the defendant was appointed as the trustee in bankruptcy of the third-party house; the third-party house was registered in the house register as the original acquisitor of each building of this case since July 7, 1976; and since March 12, 1976, it was registered as the owner of the third party real estate listed in the separate sheet.

2. Determination on this safety defense

The defendant asserts that the lawsuit of this case seeking the performance of bankruptcy claim in this court, which is not the bankruptcy court, is unlawful, since the plaintiffs' right to claim the transfer of ownership based on the completion of the acquisition by prescription for the housing benefiting from the bankrupt falls under the bankruptcy claim due to the property claim arising from the causes arising before the bankruptcy is declared, and the bankruptcy claim can be exercised only through bankruptcy procedure

However, if there is no third party who has an interest in the acquisition of real estate after the completion of the prescription period, the claimant for the acquisition of prescription may choose at will the starting point of the acquisition, but if there is a third party who has an interest in the real estate registered in the name of a third party after the completion of the prescription period, the third party cannot choose the starting point of the acquisition at will (see Supreme Court Decision 93Da7358, 93Da7365, Oct. 26, 1993). According to the above facts, according to the above facts, it is reasonable to view that, after April 26, 1998, 198 after the expiration of 20 years from the commencement of the possession of the first and second buildings of this case, the number of persons who have an interest in the real estate, who have an interest in the real estate, constituted a third party who has an interest in the real estate after the completion of the prescription period as the date of the registration of the transfer of ownership due to the completion of the prescription period, it cannot be seen that the plaintiffs's right to claim for acquisition of bankruptcy.

On the other hand, a bankruptcy creditor is prohibited from exercising his individual right by resorting to the bankruptcy procedure, and he can obtain the satisfaction only by participating in the bankruptcy procedure (Article 15 of the Bankruptcy Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter the same shall apply). If the purpose of his claim is not money, or if the amount of his claim is not fixed, the appraised value at the time of the declaration of bankruptcy is considered to be the amount of his bankruptcy claim (Article 17 of the Bankruptcy Act). Thus, a bankruptcy creditor shall report his claim to the bankruptcy court within a fixed period of time, receive dividends according to the amount and order confirmed after the investigation at the date of the investigation into the claim, and if a bankruptcy creditor raises an objection against the reported bankruptcy claim, the bankruptcy creditor may file a lawsuit seeking confirmation of the claim only with respect to the matters listed in the creditors’ list (Article 220 of the Bankruptcy Act). Accordingly, all lawsuits seeking confirmation of the bankruptcy claim is unlawful.

On June 5, 200, the facts that health care units and tri-profit houses were declared bankrupt by the Seoul District Court on June 5, 200 are as seen earlier, and the facts that the plaintiffs did not report the right to claim the transfer registration of ownership to each of the buildings Nos. 1 and 2 of this case as bankruptcy claims against tri-profit houses are not disputed among the parties. Accordingly, the plaintiffs' lawsuit of this case seeking a claim for performance under the general civil law is unlawful. Thus, the defendant's defense on this issue is with merit.

On January 17, 1985, the date of the commencement of the prescription for possession by deeming the trustee in bankruptcy as a third party with an interest after the completion of the prescription for possession, and the plaintiffs, as a successor who comprehensively succeeded to the rights and obligations of the bankrupt, were voluntarily selected on January 17, 1985, and acquired by prescription each of the buildings of this case No. 1 and No. 2 on January 17, 2005, the date of the declaration of bankruptcy, but after the declaration of bankruptcy, it cannot be set up against the bankruptcy creditor if the rights and obligations of the bankrupt were acquired without going through a juristic act of the bankrupt (Article 45(1) of the Bankruptcy Act). Thus, the plaintiffs cannot set up against the defendant with the right to claim for the transfer registration of ownership

3. Conclusion

Therefore, the plaintiff's lawsuit of this case shall be dismissed in an unlawful manner, and since the judgment of the court of first instance with different conclusions is unfair, it shall be revoked, and it is so decided as per Disposition by the decision to dismiss the lawsuit of this case.

[Attachment List omitted]

Judges’ aid (Presiding Judge)