Where a trustee in bankruptcy of a trust company, who is a trustee, files a lawsuit against the truster seeking reimbursement of the expenses paid to him/her, but loses his/her liability to pay the costs of lawsuit, the other party's right to claim payment of the costs of lawsuit against the trustee in bankruptcy falls under estate claims provided for in subparagraph 4 of Article 38 of the former Bankruptcy Act.

Where a trustee in bankruptcy of a trust company, who is a trustee, has filed a lawsuit against the truster seeking reimbursement of the expenses that have not been paid to him/her but has lost, and thus the other party is liable to pay the expenses of lawsuit, the right to claim payment against the trustee in bankruptcy falls under the estate claim provided for in subparagraph 4 of Article 38 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428, Mar. 31, 2005).

Article 38 subparag. 4 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) (see current Article 473 subparag. 4 of the Debtor Rehabilitation and Bankruptcy Act), Articles 42 and 43 of the Trust Act

Plaintiff, Ltd.

Defendant in bankruptcy of ○ Trust Co., Ltd. (Law Firm Jinjin, Attorney Sung-soo, Counsel for defendant-appellant)

Seoul Central District Court Decision 2009Na2728 Decided May 19, 2009

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

The grounds of appeal are examined.

1. The court below held that, in principle, ○○ Trust Co., Ltd. (hereinafter “○○ Trust”) filed a lawsuit against the plaintiff seeking reimbursement of KRW 2.8 billion against the plaintiff who is the truster and the beneficiary of the land in order to promote a project for creating an industrial complex on the land owned by the plaintiff, ○○ Trust suspended the above trust business due to financial standing around December 1997 during the process of carrying out the above trust business by borrowing most expenses incurred outside the trust affairs, etc., and ○○ Trust Co., Ltd. (hereinafter “○○ Trust”) was declared bankrupt on December 30, 202, and the defendant was appointed as the bankruptcy trustee on the ground that ○○ Trust Co., Ltd. (hereinafter “○○ Trust”) had the right to claim reimbursement of the expenses for trust affairs in the amount of KRW 2.8 billion against the plaintiff who is a trustee and the beneficiary, and that, in principle, it cannot be deemed that the trust property should be managed by the defendant as a new trustee under the Bankruptcy Act, with the exception of the above litigation costs for which the plaintiff filed against the defendant.

2. However, we cannot agree with the judgment of the court below for the following reasons.

Even according to the facts established by the court below, the defendant's exercise of the lawsuit against the plaintiff is clear that ○○ Trust, the trustee, is the right to claim reimbursement of expenses against the plaintiff, the truster and the beneficiary based on Articles 42 and 43 of the Trust Act. If so, the exercise of the right to claim reimbursement of expenses is exercised in the status of the trustee as the owner of its own property, and cannot be deemed to have been exercised in the status of the owner or manager of the trust property. Thus, such act of the defendant is to recover the property belonging to the bankrupt estate in the capacity of the trustee of ○○ Trust, the trustee, as the trustee, in the capacity of the trustee of ○ Trust, and shall be deemed to be an act committed against the bankrupt estate. Therefore, as long as the defendant lost against the other party, the right to claim the amount of litigation expenses against the plaintiff against the bankrupt estate constitutes a estate claim under Article 38 subparagraph

Nevertheless, the court below held that the plaintiff's right to claim the above amount of litigation costs against the defendant does not constitute estate claims on the grounds of its stated reasoning, which erred by misapprehending the legal principles on estate claims under the Bankruptcy Act, and thereby adversely affected the judgment.

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 Park Si-hwan (Presiding Justice)