The effect of a judgment sentenced by the court while proceeding the litigation procedures without knowledge of the fact that a decision on commencing an individual rehabilitation procedure is rendered with respect to the debtor during the continuation of a revocation lawsuit for the debtor.

Articles 406(1) and 584(1) of the Debtor Rehabilitation and Bankruptcy Act

Supreme Court Decision 2010Da37141 Decided September 9, 2010 (Gong2010Ha, 1898) Supreme Court Decision 2012Da33976 Decided June 13, 2013 (Gong2013Ha, 1194)

Plaintiff

Defendant (Attorney Jeong-sung et al., Counsel for defendant-appellee)

Daegu District Court Decision 2013Na2236 Decided September 6, 2013

The part of the judgment of the court below concerning the conjunctive claim shall be reversed, and that part of the case shall be remanded to the Daegu District Court Panel Division.

Judgment ex officio is made.

According to Articles 584(1) and 406(1) of the Debtor Rehabilitation and Bankruptcy Act, when a lawsuit filed by an individual rehabilitation creditor is pending in the court at the time when the individual rehabilitation procedure commenced, the lawsuit proceedings shall be interrupted until the takeover of the lawsuit or the termination of the individual rehabilitation procedure (see Supreme Court Decision 2010Da37141, Sept. 9, 2010). In a case where a creditor revocation lawsuit is pending and a judgment was rendered by a court without knowing the fact that the individual rehabilitation procedure commenced but the debtor did not take over the lawsuit without being aware of the fact that the lawsuit was commenced, the judgment is deemed to constitute an unlawful act of law in the same manner as the case where the debtor, who is to take over the lawsuit by the commencement of the individual rehabilitation procedure of the debtor, was tried and sentenced without being able to take over the lawsuit by an agent (see Supreme Court Decision 2012Da33976, Jun. 13, 2013).

The Plaintiff asserted that the instant mortgage contract concluded between the Nonparty and the Defendant was a fraudulent act detrimental to the Plaintiff by deeming the Nonparty as a joint and several surety claim against the Nonparty regarding the payment of goods as a secured claim, and sought the revocation of the said mortgage contract and the cancellation of the registration procedure for the establishment of a mortgage of the instant case.

The record reveals the following facts: (a) on July 18, 2012, Daegu District Court Decision 2012Da12032, Jul. 18, 2012, the first instance court rendered a decision dismissing the Plaintiff’s claim after closing the pleadings on the ground that the presumption of the beneficiary in bad faith against the Defendant was not reversed; (b) the first instance court revoked the part concerning the conjunctive claim among the first instance judgment and rendered a judgment citing the conjunctive claim on the grounds that the presumption of the beneficiary in bad faith against the Defendant was not reversed on the ground that the debtor did not know the fact that the individual rehabilitation procedure commencement order against the debtor was not established; and (c) the first instance court rendered a decision dismissing the Plaintiff’s claim after closing the pleadings.

Examining the above facts in light of the legal principles as seen earlier, the first instance court erred by misapprehending the legal principles on the interruption of litigation procedures and the acceptance of litigation procedures, which affected the conclusion of the judgment by misapprehending the legal principles on the interruption of litigation procedures and the acceptance of litigation procedures.

Therefore, without examining the grounds of appeal, the part concerning the conjunctive claim among the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)