[1] The meaning of Article 61 (1) of the Bankruptcy Act

[2] Whether a bankruptcy creditor may exercise by subrogation the right of the bankruptcy trustee with respect to the bankrupt estate in order to preserve his/her claim against the bankrupt (negative)

[1] Article 61 (1) of the Bankruptcy Act provides that "any compulsory execution, provisional seizure, or provisional disposition against the property belonging to the bankrupt estate with respect to any bankruptcy claim shall lose its effect against the bankrupt estate." The purpose of the provision is to interpret that the compulsory execution, execution and preservation act in all relation between the parties concerned shall not be absolute invalidation, but shall be relatively invalid only in relation to the bankrupt estate.

[2] Article 7 of the Bankruptcy Act provides that "the right to manage and dispose of the bankrupt estate belongs to the trustee in bankruptcy," so that the bankrupt does not recognize the right to manage and dispose of the bankrupt estate and belongs to the trustee in bankruptcy, and Article 15 of the same Act provides that "the bankruptcy estate shall not exercise its right to manage and dispose of the bankrupt estate without resorting to the bankruptcy procedure." This purports to prohibit the free reorganization of the bankrupt's property and to entrust the right to manage and dispose of the bankrupt estate to the trustee in bankruptcy in a fair and reasonable manner, and at the same time, to prohibit the bankruptcy creditor from participating in the bankruptcy procedure without resorting to the bankruptcy procedure, because the bankruptcy creditor exercises his right to dispose of the bankrupt estate in order to preserve his claim against the bankrupt.

[1] Article 61 (1) of the Bankruptcy Act / [2] Articles 7 and 15 of the Bankruptcy Act

Korea Asset Management Corporation (Attorney Kim Jong-hun, Counsel for defendant-appellant)

1. The term "appin" means

Seoul High Court Decision 2000Na3080 delivered on June 16, 2000

The part of the judgment of the court below concerning the conjunctive claim is reversed, and the lawsuit is dismissed. The remaining grounds of appeal by the plaintiff are dismissed. All costs of the lawsuit are assessed against the plaintiff.

1. As to the main claim

Article 61 (1) of the Bankruptcy Act provides that "the compulsory execution, provisional seizure or provisional disposition against any property belonging to the bankruptcy estate with respect to any bankruptcy claim shall lose its effect against the bankruptcy estate". The purpose of the provision is to interpret that the compulsory execution, execution and preservation act in all relation between the parties concerned shall not be absolute invalidation, but shall be relatively invalid only in relation to the bankruptcy estate.

The decision of the court below to the same purport is correct, and there is no error of law by misapprehending the legal principles on the interpretation of Article 61 (1) of the Bankruptcy Act

We cannot accept this part of the grounds of appeal.

2. As to the conjunctive claim

If the plaintiff, as a preliminary claim, cannot assert the invalidity of provisional seizure against the defendant directly as the plaintiff's conjunctive claim, he asserted the invalidation of provisional seizure against claims against the defendant by subrogation of the sports bank as a creditor against the Gyeonggi Bank's creditor against the Gyeonggi Bank under the contract for transfer and takeover of claims (hereinafter referred to as "KK Bank"), and sought to return the dividends between the defendant and the defendant as unjust enrichment, the court below rejected the plaintiff's claim on June 29, 1998 on the ground that the Gyeonggi Bank's bankruptcy trustee can claim the invalidation of provisional seizure against claims against the defendant and seek a return of unjust enrichment equivalent to the dividends. However, the Gyeonggi Bank's transfer of collateral against the non-party et al. to the plaintiff on June 12, 1998 and completed the transfer of collateral against the non-party et al. on the certificate with a fixed date, so the plaintiff's claim against the Gyeonggi Bank under the contract for transfer and takeover does not exist any longer. Thus, the plaintiff's assertion that the plaintiff can exercise the above right by subrogation in order to preserve the claim against the Gyeonggi Bank's claim.

However, according to the record, there is no assertion or proof that the supplementary registration of the transfer of the right to collateral has been made with respect to the transfer of the right to collateral security with respect to the plaintiff's transfer of the right to collateral security. Rather, the plaintiff who has paid the transfer price of the right to collateral security and received the transfer price for the right to collateral security is still a Gyeonggi Bank which is the transferor, and the plaintiff has completed the auction procedure with the execution of the right to collateral security and was excluded from the distribution. Therefore, in this case where the transfer of the right to collateral security has no additional registration of the transfer of the right to collateral security, and there is no additional registration of the transfer of the right to collateral security, it cannot be readily concluded that the plaintiff's claim against the Gyeonggi Bank based on the contract to transfer the right to collateral security with a fixed date does not exist any more easily than the plaintiff's claim based on the transfer of the right to collateral security based on the contract to transfer the right to collateral security.

On the other hand, however, Article 7 of the Bankruptcy Act provides that "the right to manage and dispose of the bankrupt estate shall belong to the bankruptcy trustee," so that the bankruptcy trustee does not recognize the right to manage and dispose of the foundation, and Article 15 of the Act provides that "the bankruptcy claim shall not be exercised without resorting to bankruptcy proceedings." This means that "The bankruptcy claim shall not be exercised without resorting to bankruptcy proceedings." This means that the prohibition of free liquidation of the bankrupt's property and the right to dispose and dispose of the bankrupt estate shall be entrusted to the fair and reasonable reorganization of the bankruptcy trustee, and at the same time, the purport of prohibiting the bankruptcy creditor from participating in the reorganization of the bankrupt estate without resorting to bankruptcy proceedings, so it shall be interpreted that the bankruptcy creditor exercises his right to dispose of the bankrupt estate in order to preserve the claim against the bankrupt.

Therefore, even if the plaintiff is a bankruptcy creditor of the Gyeonggi Bank, he/she is not in a legal position to seek a judgment on the return of unjust enrichment by exercising the trustee's right, and thus the plaintiff's preliminary claim should be dismissed.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the conjunctive claim is reversed, and this part is sufficient to be tried by this court in accordance with Article 407 of the Civil Procedure Act, and the lawsuit is dismissed, the remaining appeal of the plaintiff is dismissed, and all costs of the lawsuit are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)