The effect of a judgment sentenced by the court while proceeding the litigation procedures with the knowledge of the fact that a decision to commence an individual rehabilitation procedure is rendered with respect to the debtor while the creditor revocation lawsuit is pending.

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 creditor commences the individual rehabilitation procedure, the proceedings shall be interrupted until the takeover of the lawsuit or the termination of the individual rehabilitation procedure. While a creditor revocation lawsuit is pending, a decision to commence the individual rehabilitation procedure was rendered with respect to the debtor. However, if the court rendered a judgment by proceeding the lawsuit in the state where the debtor does not take over the lawsuit even though the debtor was aware of the decision to commence the individual rehabilitation procedure, the judgment was rendered after the debtor cannot take over the lawsuit under the law, and thus, it is erroneous in the same manner as the case where the debtor, who is to take over the lawsuit, was

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

Supreme Court Decision 94Da24121 Decided February 9, 1996 (Gong1996Sang, 865), Supreme Court Decision 201Da56057 Decided October 27, 201 (Gong2011Ha, 2447), Supreme Court Decision 2012Du11546 Decided September 27, 2012 (Gong2012Ha, 1754)

New Card Corporation

Defendant

Daejeon District Court Decision 201Na18565 Decided March 15, 2012

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

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 the individual rehabilitation procedure commenced, the 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 court rendered a judgment after proceeding with the debtor's litigation as it did not take place even though the debtor was aware of the commencement order of the individual rehabilitation procedure, the judgment was rendered in a state where the debtor, who is to take over the litigation procedure upon the commencement order of the debtor's individual rehabilitation procedure, is unable to do legal litigation, and thus, the judgment was rendered in the same manner as the case where the debtor, who is to take over the litigation procedure upon the commencement order of the individual rehabilitation procedure, was not represented legally by the agent, was deemed to have been erroneous (see Supreme Court Decisions 94Da24121, Feb. 9, 196; 201Da56057, Oct. 27, 2011, etc.).

The Plaintiff asserted that the gift contract of KRW 55,000,000 concluded on August 5, 2010 between the Nonparty and the Defendant was a fraudulent act detrimental to the Plaintiff, and sought revocation within the scope of the preserved claim, by the time of February 15, 2011.

The record reveals the following facts: (a) on June 23, 2011, the date prior to the closing of argument in the first instance court, the Daejeon District Court Decision 2011Nu1745, which partially accepted the Plaintiff’s claim on October 28, 201; and (b) on June 23, 201, the Defendant submitted evidentiary materials, such as evidence No. 11, by asserting that the individual rehabilitation procedure against the debtor was commenced in the first instance court; and (c) the first instance court, knowing the commencement of the individual rehabilitation procedure against the debtor, even though having known the debtor of the commencement of the proceedings, proceed with the proceedings in the state where the debtor’s lawsuit is not pending even though the debtor’s lawsuit is not pending even after the commencement of the proceedings; and (d) on October 28, 2011, the lower court also rendered a judgment dismissing the Defendant’s appeal.

Examining the above facts in light of the legal principles as seen earlier, the first instance court erred by misapprehending the legal principles as to the interruption of litigation procedures and the acceptance of litigation, which affected the conclusion of the judgment, by misapprehending the legal principles as to the interruption of litigation procedures and the acceptance of litigation. The grounds of appeal assigning this error are with merit.

Therefore, without examining the remaining grounds of appeal by the Defendant, 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 Sang-hoon (Presiding Justice)