In a case where a lawsuit seeking the confirmation of existence of an obligation was pending but a bankruptcy was declared against a creditor while the lawsuit seeking the confirmation of existence of an obligation but the pleadings were concluded without due process and the proceedings were taken by the appellate court, whether the procedural defect is cured (affirmative)

According to Article 217 of the Civil Procedure Act and Article 60 of the Bankruptcy Act, if a party is declared bankrupt, the litigation proceedings relating to the bankrupt foundation shall be interrupted until the bankruptcy trustee or the other party takes over. Thus, the litigation proceedings seeking confirmation of existence of an obligation against the bankrupt by the debtor against the bankrupt constitutes a lawsuit concerning the property belonging to the bankrupt foundation among the litigation proceedings relating to the bankrupt foundation. Thus, the litigation proceedings relating thereto are naturally interrupted by the declaration of bankruptcy against the bankrupt. Meanwhile, in a case where the grounds for the interruption of the litigation proceedings are satisfied and the pleading is concluded and the judgment is pronounced, the judgment shall be deemed unlawful, but it shall not be deemed null and void in the procedure, and it shall not be deemed null and void in the procedure, just as in the case where the representative was not duly represented, and if the taking-over proceedings are conducted in the appellate court, such procedural defects shall be cured, and such taking-over and appeal shall be legitimate.

Articles 217, 225, 394(1)4, and 422(1)3 of the Civil Procedure Act; Article 60 of the Bankruptcy Act

Supreme Court en banc Decision 94Da2844 delivered on May 23, 1995 (Gong1995Sang, 2116), Supreme Court Decision 96Da35484 delivered on October 10, 1997 (Gong1997Ha, 3397), Supreme Court Order 98Da7 delivered on May 30, 1998 (Gong198Ha, 1844)

Plaintiff (Attorney Long-term et al., Counsel for plaintiff-appellee)

Nonparty 1 and one other in bankruptcy of the bankrupt Bank, which is the taking over of the lawsuit of the Gyeonggi Bank.

Seoul High Court Decision 98Na37028 delivered on December 31, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. First, we examine ex officio.

According to Article 217 of the Civil Procedure Act and Article 60 of the Bankruptcy Act, if a party is declared bankrupt, the litigation proceedings relating to the bankrupt foundation shall be interrupted until the bankruptcy trustee or the other party takes over. Thus, a litigation seeking confirmation of existence of an obligation against the bankrupt by the debtor against the bankrupt falls under the litigation concerning the property belonging to the bankrupt foundation among the litigation concerning the bankrupt foundation, and thus the litigation proceedings relating

Meanwhile, in a case where the grounds for interruption of the litigation procedure are excessive and the trial is concluded and a judgment is pronounced, the judgment shall result in the exclusion of legitimate assignees involved in the lawsuit from the authority, and it shall not be deemed unlawful in the procedure but shall not be deemed null and void as a matter of course. Likewise, as in the case where a representative was not lawfully represented by the representative, a petition may be filed for revocation by an appeal or retrial on the grounds of defects in the power of representation. In a case where a takeover procedure is conducted by the appellate court, the foregoing procedural defects are cured and the takeover and appeal are lawful (see, e.g., Supreme Court en banc Decision 94Da28444, May 23, 199

According to the records, on October 26, 1998, when the lawsuit of this case was pending in the court below, the facts that the defendant Gyeonggi Bank was declared bankrupt and the pleading was concluded and declared by the court below. The plaintiff appealed against this, and the plaintiff and the defendant filed an appeal against each request for succession at the court below. The procedure of this case is all valid.

2. We examine the following grounds for appeal.

Examining the reasoning of the judgment below in light of the records, the court below's fact-finding and judgment that rejected the plaintiff's assertion that the bank deposited the plaintiff's savings account into the ordinary savings account opened by the non-party 2 and deposited the loan in the name of the plaintiff in the name of the non-party 2 before the takeover of the business on October 25, 1995 with the plaintiff as the borrower at the request of the non-party 2, and that the non-party 2 received it pursuant to the agreement with the plaintiff, which rejected the plaintiff's claim that the non-party 2 deposited the savings account into the plaintiff's savings account and stored the passbook in the bank, is just, and there is no error of misconception of facts or of misunderstanding of legal principles as to the deposit contract by violating the rules of evidence. The ground of appeal pointing this out is not acceptable.

Therefore, the appeal is 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 Lee In-hee (Presiding Justice)