Changwon District Court-2014-Gu Partnership-21415 ( October 17, 2017)

Since the lawsuit of this case was filed without any delegation by the trustee in bankruptcy, the lawsuit of this case is unlawful.

Since the debtor is not a party to a lawsuit in relation to the bankrupt foundation, the lawsuit brought by the debtor as the plaintiff after the declaration of bankruptcy is illegal and dismissed. In such cases, the petition filed by the trustee in bankruptcy on the premise that the lawsuit is pending in the court at the time the bankruptcy is declared is not legitimate and thus, it is not allowed

Article 59 of the Debtor Rehabilitation and Bankruptcy Act (Suspension, etc. of Litigation Proceedings)

Busan High Court (Chowon) 2018Nu11636

○○○ Co., Ltd.

○ Head of tax office

Changwon District Court Decision 2014Guhap21415 Decided October 17, 2017

June 20, 2018

July 25, 2018

1. The plaintiff applicant's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff's successor to the lawsuit.

The judgment of the first instance shall be revoked. The corporate tax reverted to the Plaintiff in the year 2008, August 13, 2012

223,417,540 won, 322,317,650 won of corporate tax for the year 2009, 34,396,960 of corporate tax for the year 2010;

Value-added tax for the first period of 2008 986,453,850 won, and value-added tax for the second period of 2008

1,084,028,830 won, value-added tax for the first period of 2009, KRW 1,205,464,160, and KRW 2, 2009

Value-added Tax 967,802,770 won, value-added tax 263,975,430 won for the first year of 2010

Over-disposition division, ② Income amount attributed to the year 2008 dated November 23, 2012, 858,351,526 won, and 209

The change in the amount of income in 561,241,456 won, and the amount of income in 2010 on 53,690,183 won;

All notifications shall be revoked.

1. Details of the disposition;

The reasoning for this Court’s explanation is as stated in the corresponding part of the judgment of the court of first instance. Thus, this Court’s explanation is based on Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

It is as shown in the attached Form.

3. Whether the lawsuit of this case and the request for continuation are legitimate

A. Relevant legal principles

Upon the declaration of bankruptcy, all domestic and foreign properties owned by the debtor at the time of the declaration of bankruptcy constitute a bankruptcy estate (Article 382(1) of the Debtor Rehabilitation Act), and the debtor loses the right to manage and dispose of any properties that constitute the bankruptcy estate, and the right to dispose of them shall belong exclusively to the trustee in bankruptcy (Article 384 of the Debtor Rehabilitation Act). As a result of transfer of the right to manage and dispose of the bankruptcy estate to the trustee in bankruptcy, the trustee in bankruptcy becomes a party to the lawsuit concerning the bankruptcy estate (Article 359 of the Debtor Rehabilitation Act), and the lawsuit pending in the court at the time of the declaration of bankruptcy is suspended, and in principle, the trustee in bankruptcy takes over the lawsuit (Article 347 of the Debtor Rehabilitation Act and Article 239 of the Civil Procedure Act). As such, the lawsuit brought by the debtor after the declaration of bankruptcy is made illegal and dismissed, and in such cases, the trustee’s request for taking over the lawsuit filed by the trustee in bankruptcy on the premise that the lawsuit is pending at the court at the time of the declaration of

B. The plaintiff's confirmation of the lawsuit of this case

As seen earlier, the instant lawsuit was filed with Kima, Lee bB certified tax accountant and Kim Jong-ri, upon delegation by Nam C, with the Plaintiff as a party to the lawsuit, and the Plaintiff’s bankruptcy trustee, who is not the Plaintiff, merely indicated in the delegation letter of the lawsuit, and neither of the proviso nor attached to deeming that the Plaintiff filed the lawsuit as a party to the lawsuit. Furthermore, after the Plaintiff’s bankruptcy was revealed during the course of the first instance trial, the Plaintiff’s bankruptcy trustee refused to take over the lawsuit on February 29, 2016, even if the Plaintiff’s bankruptcy trustee requested for taking over the lawsuit from Kim Jong-ri, and on March 23, 2016, the instant lawsuit was filed with the first instance court without filing a lawsuit with the Plaintiff’s representative director, and thus, it constitutes an unlawful disposition without delegation of the Plaintiff’s corporate tax (negative by the Plaintiff’s corporate tax claimant), the Plaintiff’s bankruptcy claim against which the Plaintiff’s bankruptcy trustee was declared as a party to the lawsuit cannot be asserted in the instant case.

Pursuant to the aforementioned legal principles, the lawsuit in this case was filed by an obligor who is not a party to the lawsuit regarding the bankrupt foundation after the bankruptcy is declared, and thus, it should be dismissed in an unlawful manner. The bankruptcy trustee's request for succession of the lawsuit also is not permitted since it is premised on the fact that the lawsuit was pending in the court at the time the bankruptcy is declared (the plaintiff filed a tax judgment prior to the filing of the lawsuit in this case, and the decision of tax judgment was rendered after the commencement of rehabilitation procedures and the declaration of bankruptcy regarding the plaintiff was made consecutively while the lawsuit in this case was pending, but the tax judgment procedure in this case is separate from the lawsuit in this case, and thus, the lawsuit in this case only constitutes "the case where the lawsuit in this case was instituted after the declaration of bankruptcy,"

(d) assumptive judgment: Judgment of illegality due to refusal of ratification of an act of unauthorized representation;

Even if the plaintiff, not the plaintiff, is deemed to be the plaintiff's bankruptcy trustee, the lawsuit in this case is unlawful since the attorney Kim Jong-hwan filed the lawsuit in this case without the delegation of the plaintiff's bankruptcy trustee. However, during the proceedings in the first instance court, the plaintiff's bankruptcy trustee refused to take over the lawsuit on February 29, 2016, while the plaintiff's bankruptcy trustee was requested to take over the lawsuit on March 23, 2016, and on March 23, 2016, the plaintiff's bankruptcy trustee presented a written opinion that "the lawsuit in this case is not a lawsuit filed by the bankruptcy trustee but an action brought without the delegation of the plaintiff's representative director's delegation." As such, the plaintiff's bankruptcy trustee expressed his/her intention not to confirm the defects of the lawsuit in this case which was filed without the delegation of the plaintiff's bankruptcy after the declaration of bankruptcy, and it cannot be confirmed again (see, e.g., Supreme Court Decision 2007Da79480, Aug. 21, 2008).

E. Sub-committee

Therefore, the lawsuit of this case and the request for continuation of the lawsuit of this case are unlawful.

4. Conclusion

Therefore, the judgment of the first instance court is just and it is dismissed as the appeal of the plaintiff's successor to the lawsuit is without merit. It is so decided as per Disposition.