Where a decision to discontinue a bankruptcy is made and becomes final and conclusive after the debtor is declared bankrupt, whether the debtor recovers the right to manage and dispose of the bankruptcy estate and the standing to sue for the bankruptcy estate (affirmative), and whether such circumstance is an ex officio investigation by the court (affirmative)

Articles 384 and 359 of the Debtor Rehabilitation and Bankruptcy Act, Articles 51 and 134 of the Civil Procedure Act

Supreme Court Decision 2010Da64877 Decided November 25, 2010 (Gong2011Sang, 30)

Plaintiff

Defendant

Incheon District Court Decision 2015Na12840 decided September 27, 2016

The judgment below is reversed, and the case is remanded to the Incheon District Court.

The grounds of appeal are examined.

1. When the debtor is declared bankrupt under the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”), the authority to manage and dispose of the bankruptcy estate belongs to the trustee in bankruptcy (Article 384 of the Debtor Rehabilitation Act), and the trustee in bankruptcy is the party in bankruptcy in the lawsuit related to the bankruptcy estate (Article 359 of the Debtor Rehabilitation Act). However, when a decision to discontinue the bankruptcy becomes final and conclusive after the debtor is declared bankrupt, the debtor shall recover the right to manage and dispose of the bankruptcy estate and the standing to sue in the lawsuit relating to the bankruptcy estate. Such circumstances should be examined and determined ex officio by the court, even if the party does not assert any claim as the matter under ex officio, and shall also be considered in the final appeal in cases where the requirements for the lawsuit, such as the standing to sue, are not satisfied or such defects are cured after the closing of the arguments at the fact-finding court (see Supreme Court Decision 20

2. The lower court: (a) acknowledged that the Plaintiff, a notary public, prepared a notarial deed on December 7, 2009, No. 1039 of the No. 1039 (hereinafter “instant notarial deed”); (b) the Plaintiff was declared bankrupt on July 24, 2014; (c) appointed the Nonparty as a bankruptcy trustee on the same day; and (d) filed the instant lawsuit against the Defendant seeking confirmation of the existence of the obligation based on the instant notarial deed on March 25, 2015, which was after the said declaration of bankruptcy, on March 25, 2015, on the ground that the instant lawsuit relating to the bankrupt was filed by the Plaintiff without standing to be a party, and thus dismissed the instant lawsuit on the ground that it is unlawful.

However, according to the records, on December 19, 2016, after the judgment of the court below was rendered, the plaintiff can be recognized as having received the decision of discontinuation of the bankruptcy and confirmed on January 3, 2017. According to this, the plaintiff can file a lawsuit of this case, which is a lawsuit related to the bankruptcy foundation. Such litigation requirements should be recognized even in the final appeal due to ex officio investigation. Thus, the judgment of the court below which dismissed the lawsuit of this case on the ground that the plaintiff has no standing to be a party. The grounds for appeal pointing this out are with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)