[1] The meaning of the main text of Article 46 (1) of the former Bankruptcy Act, which provides that the registration or provisional registration of real estate or a ship made after the declaration of bankruptcy cannot be asserted against the "bankruptcy creditor"

[2] Whether a bankruptcy trustee may file a claim for the performance of the registration procedure against the bankruptcy trustee based on the right to file for a provisional registration of real estate or a ship which occurred before bankruptcy is declared (negative)

[3] In a case where the owner is declared bankrupt after the completion of the prescription period for the acquisition of real estate, whether the possessor can file a claim against the bankruptcy trustee for the implementation of the procedure for the registration of transfer of ownership due to the completion of the prescription period (negative), and whether the possessor may arbitrarily select and claim the starting point of the acquisition by prescription (negative), and the method of exercising

[1] In light of Article 15 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005), a bankruptcy creditor is prohibited from exercising individual rights that do not go through bankruptcy procedures, the main text of Article 46(1) of the same Act means that the registration or provisional registration of real estate or ship conducted after the declaration of bankruptcy cannot be asserted against the "bankruptcy creditor" with the care of a good manager for the common interest of the whole bankruptcy creditor, and this means that the bankruptcy trustee cannot oppose the "trustee" who performs his duties with the care of a good manager for the common interest of the bankruptcy creditor. This means that the bankruptcy trustee is not merely a general successor of the bankrupt who has succeeded to the duty of registration or provisional registration of real estate or ship of the bankrupt, but at the same time, it is interpreted that the registration or provisional registration of real estate or ship conducted after the declaration of bankruptcy cannot be asserted against the bankruptcy trustee on the premise that he has a status as a third

[2] The purport of Article 46(1) of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) is to be interpreted as including, as a matter of course, the purport of Article 46(1) of the former Bankruptcy Act is that where the registration or provisional registration of real estate or a ship has not yet been completed by the time bankruptcy is declared, the bankruptcy trustee cannot file a claim for the execution of the registration or provisional registration procedure against the bankruptcy trustee

[3] A person who completed the period of prescription for the acquisition of real estate before the declaration of bankruptcy but failed to complete the registration of ownership transfer based on it until the time the bankruptcy is declared cannot request the bankruptcy trustee to implement the procedure of the registration of ownership transfer based on the completion of the period of prescription for the acquisition of real estate before the declaration of bankruptcy, unless the bankruptcy trustee is appointed in the position of a third party with interest to the real estate that belongs to the bankruptcy estate for the common interest of all bankruptcy creditors. In addition, the bankrupt who lost the right to manage and dispose of the real estate remains as the legal owner before and after the declaration of bankruptcy, may not request the bankruptcy trustee to implement the procedure of the registration of ownership transfer by asserting that the period of prescription for the acquisition of real estate has been completed at will after the declaration of bankruptcy. In this case, the right to claim for the registration of ownership transfer based on the completion of the period of prescription for the acquisition of possession, which is a claim with the legal nature, constitutes a property claim arising from the bankruptcy claim against the bankrupt before the declaration of bankruptcy.

[1] Articles 7 (see current Article 384 of the Debtor Rehabilitation and Bankruptcy Act), 15 (see current Article 424 of the Debtor Rehabilitation and Bankruptcy Act), 46 (1) (see current Article 331 (1) of the Debtor Rehabilitation and Bankruptcy Act), 154 (1) (see current Article 361 (1) of the Debtor Rehabilitation and Bankruptcy Act), 7 (see current Article 384 of the former Debtor Rehabilitation and Bankruptcy Act, Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005), 15 (see current Article 424 of the Debtor Rehabilitation and Bankruptcy Act, Article 41 of the Debtor Rehabilitation and Bankruptcy Act, Article 46 (1) of the Debtor Rehabilitation and Bankruptcy Act, Article 36 (1) of the Debtor Rehabilitation and Bankruptcy Act, Article 46 (1) of the Debtor Rehabilitation and Bankruptcy Act, Article 36 (1) of the current Debtor Rehabilitation and Bankruptcy Act, Article 47 (2) of the Debtor Rehabilitation and Bankruptcy Act, Article 3014 (2 of the current Debtor Rehabilitation and Bankruptcy Act) of the Debtor Act

Plaintiff 1 and two others (Attorney double-consul et al., Counsel for the plaintiff-appellant)

The bankruptcy trustee Kim Jong-si, Inc. (Attorney Kim Jong-chul, Counsel for plaintiff-appellant)

Busan High Court Decision 2005Na18764 decided May 4, 2006

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Article 46 (1) of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) provides that "any performance of an obligation arising before the declaration of bankruptcy with respect to any real estate or ship, which was made after the declaration of bankruptcy, or provisional registration under Article 3 of the Registration of Real Estate Act, shall not be asserted against any bankruptcy creditor." In light of the prohibition of individual exercise of rights without resorting to bankruptcy procedures pursuant to Article 15 of the former Bankruptcy Act, the above provision provides that the registration or provisional registration with respect to any real estate or ship, which was made after the declaration of bankruptcy, cannot be asserted against the "bankruptcy creditor" who performs his/her duties with the care of a good manager for the common interest of all the bankruptcy creditors, shall not be asserted against the "trustee in bankruptcy" who performs the above duties with respect to any real estate or ship, and at the same time, the bankruptcy trustee may not claim any registration or provisional registration with respect to any property belonging to the bankrupt estate after the declaration of bankruptcy.

Therefore, as long as a bankruptcy trustee is appointed in the position of a third party with an interest in the real estate belonging to the bankrupt estate at the same time as the bankruptcy is declared against the owner of the real estate before the declaration of bankruptcy, a person who has completed the period of prescription for the acquisition of the real estate before the declaration of bankruptcy, but failed to complete the registration of ownership transfer due to it until the declaration of bankruptcy is made, he cannot claim against the bankruptcy trustee for the execution of the procedure for the registration of ownership transfer due to the completion of the prescription for the acquisition of the real estate before the declaration of bankruptcy, and the bankruptcy trustee who has lost the right to manage and dispose of the real estate remains as the legal owner of the real estate after the declaration of bankruptcy is made at will, and cannot claim against the bankruptcy trustee for the execution of the procedure for the registration of ownership transfer because the prescription for the acquisition of the real estate remains as the legal owner of the real estate after the declaration of bankruptcy is made. In this case, the right to claim the registration of ownership transfer

B. In light of the above legal principles and records, the court below held that since the prescription period for the acquisition of the plaintiffs' possession of the building Nos. 1 and 2 of this case was completed on April 26, 1998, which was prior to the bankruptcy declaration of the case against the third party, the plaintiffs' right to claim the transfer of ownership against the bankrupt constitutes a bankruptcy claim as a property claim arising from the cause before the bankruptcy declaration is declared, and the third party with interest in the building Nos. 1 and 2 of this case after the completion of the prescription period for the acquisition of possession of the building of this case, the defendant appointed as the bankruptcy trustee on the same day as of June 5, 200 as the bankruptcy administrator after the completion of the prescription period for the acquisition of possession of the building of this case Nos. 1 and 2 of this case can not seek the execution of the transfer registration procedure against the defendant by arbitrarily choosing the starting point for the acquisition by prescription after the bankruptcy declaration of this case, and there is no error in the misapprehension of legal principles as to the third party and the acquisition by prescription.

2. Regarding ground of appeal No. 2

The allegation in the grounds of appeal that Article 45(1) of the former Bankruptcy Act does not apply to the prescriptive acquisition is about the court below’s assumptive judgment. As seen earlier, insofar as the court below’s principal judgment is justifiable, it does not affect the conclusion of the judgment even if it was erroneous in the court below’s as alleged in its assumptive judgment. The allegation in the grounds of appeal on this part

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)