Plaintiff (Law Firm Han-il, Attorneys Kim Ho-ho et al., Counsel for the plaintiff-appellant)

Ampim Co., Ltd. (Law Firm Man-ro, Attorneys Yang Jae-won, Counsel for the plaintiff-appellant)

April 25, 2019

Seoul Central District Court Decision 2016Gahap10662 Decided August 9, 2017

1. The appeal of this case shall be dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant's compulsory execution against the plaintiff is dismissed based on the Seoul Central District Court Decision 2009Kahap75616 decided December 9, 2009.

1. Whether the appeal of this case is lawful

(a) Facts of recognition;

The following facts do not conflict between the parties, or are found to be recognized, by integrating the whole purport of the pleadings in each entry in Eul evidence 9-1, 2, Eul evidence 1-1, 11-3, Eul evidence 17-1, 2, or 17-2, or are apparent to be recorded.

1) After filing the instant lawsuit on June 14, 2016, the ○○○ filed the instant lawsuit, and on March 6, 2017, on which the Seoul Rehabilitation Court 2017 Madan10008 decided to commence the rehabilitation procedure. The principal is deemed the custodian of the rehabilitation debtor, and the custodian ○○○○○○○○ of the rehabilitation debtor ○○ took over the instant lawsuit on or around May 9, 2017 by taking over the instant lawsuit.

2) In the above Seoul Rehabilitation Court case 2017 Madan100008, May 18, 2017, the rehabilitation procedure discontinuation decision was rendered. On May 30, 2017, the administrator ○○○○○○○ filed an application for bankruptcy and exemption with the Seoul Rehabilitation Court on May 30, 2017. Accordingly, on June 2, 2017, the Seoul Rehabilitation Court 2017Hadan2972 case, and the debtor ○○ was declared bankrupt.

3) On August 9, 2017, the first instance court sentenced the above declaration of bankruptcy, and sentenced the judgment on August 9, 2017. Accordingly, on August 22, 2017, the ○○○ individual dissatisfied with the first instance judgment, indicated the appellant as “Plaintiff ○○○○○○” and submitted a petition of appeal.

4) During the appellate trial on July 6, 2018, the appellate court rendered a decision to discontinue the bankruptcy, and accordingly, the Plaintiff’s legal representative filed an application to resume the proceedings on January 2, 2019.

B. Defendant’s assertion

After the bankruptcy was declared on June 2, 2017 with respect to ○○○, a party to a lawsuit by a trustee in bankruptcy pursuant to Article 359 of the Debtor Rehabilitation and Bankruptcy Act. Thus, the instant appeal filed in the name of ○○○, an individual who is not qualified as a party to the lawsuit is unlawful, and such procedural defect is not cured, and the appellate court of this case cannot contest the procedural illegality. In order to revoke the judgment through an appeal on the ground of defects in the power of representation, the appeal in this case is lawful on the premise that the appeal in this case is unlawful. Since the appeal in this case is unlawful, the grounds that the bankruptcy procedure for ○○○, a debtor’s bankruptcy procedure was abolished and the attorney appointed by the Plaintiff applied for the continuation of the litigation procedure cannot be said to be legitimate.

(c) Markets:

In light of the following legal principles and circumstances, it is reasonable to view that the instant appeal filed by ○○○ individual with no power to appeal without undergoing the taking-over procedure in the state of having been suspended due to the declaration of bankruptcy is unlawful.

1) Proceedings relating to the bankrupt foundation shall be interrupted when a party is declared bankrupt (Article 239 of the Civil Procedure Act). In a case where the grounds for interruption of the proceedings and the pleading are terminated and a judgment is pronounced, the judgment is unlawful in the course of a procedure that would result in the exclusion of legitimate assignees who may participate in the lawsuit from the authority of the person taking over the lawsuit, but the judgment shall not be deemed null and void automatically. However, the judgment may seek revocation by an appeal or retrial on the ground of defects in power of representation (see, e.g., Supreme Court Decisions 9Da8971, Dec. 28, 1999; 2012Da95486, 95493, Sept. 12, 2013).

2) An appeal filed by a person without the authority to file an appeal without going through the taking-over procedure under the suspension of litigation procedures without going through the taking-over procedure is unlawful unless there are special circumstances (see, e.g., Supreme Court Decisions 2002Da69211, May 27, 2003; 2002Da69211, May 27, 2003). However, when a judgment is rendered following the closure of pleadings with the grounds for the interruption of litigation procedures conducted by either party during the continuation of litigation procedures, even in cases where a person with the authority to file a lawsuit lawfully files an appeal after receiving a request for resumption or delivery of a written appeal after receiving a delivery of the judgment of the court below, and takes the taking-over procedure at the appellate court, such takeover and appeal shall be deemed lawful, and shall not be dismissed as an appeal filed without the judgment (see, e.g., Supreme Court en banc Decision 9Da8971, Dec. 28, 1999).

3) On the basis of the above legal principle, a lawsuit of demurrer filed by the bankrupt against a creditor constitutes a lawsuit against the bankrupt estate. Thus, in a case where ○○○ was declared bankrupt, the lawsuit of objection to the first instance court proceedings shall be interrupted pursuant to Article 239 of the Civil Procedure Act. In such a case, the appeal filed by ○○ individual without taking over the proceedings under suspension of the proceedings without taking over the proceedings, is unlawful unless there are special circumstances.

4) In addition, since the defendant actively contests the legitimacy of the appeal of this case, it is difficult to view that the first instance procedure was legitimate solely on the grounds that the plaintiff's legal representative, who is one of the parties, filed a request for continuation, appointed an agent of the first instance court as an agent of the appellate court, and present the case at the appellate court, and that the individual ○○○○, who is declared bankrupt upon discontinuation of the bankruptcy, is a litigation assistant, or that the procedure of the first instance is ratified as legitimate or that the recovery of defects in filing an appeal is recognized (see, e.g., Supreme Court en banc Decision 80Da623, 624, Oct. 14, 1980; 2) or 3) where the opposing party to the suspension of the procedure files an appeal at the appellate court (see, e.g., Supreme Court en banc Decision 9Da8971, Dec. 28, 199; 2) and 4).

5) The Plaintiff asserts that, as a matter of course, if the bankruptcy procedure is terminated before the lawsuit is terminated after the party was declared bankrupt, the person who was declared bankrupt naturally takes over the litigation procedure (Article 239(2) of the Civil Procedure Act). Even if there was a dispute as to the existence of the right to appeal by an individual ○○○○ at the time of the instant appeal, the individual ○○○, who was declared bankrupt by the decision of discontinuation of bankruptcy on July 6, 2018, was a legitimate litigation party by taking over the litigation procedure as a matter of course, the defect in the procedure regarding the above right to appeal under the economy of the lawsuit is deemed to have been cured and it is reasonable to continue the lawsuit lawfully. The purport of this argument is that, in a case where the instant appeal is dismissed on the ground that it goes against the litigation economy in this context, it would be unreasonable to serve the original copy of the judgment of the first instance and allow the Plaintiff to resume the appeal on the ground that it is unlawful, and that it would require very by repeating the unnecessary procedure. In light of the legal principles as seen earlier.

However, it is difficult to readily conclude that the reason for the non-economic reason alleged by the Plaintiff itself is a special reason to view the legality of appeal. Moreover, insofar as it is difficult to deem that the Defendant, on the grounds of disputing the legitimacy of appeal of this case, the illegality of the first instance procedure was ratified or the defect related to the filing of an appeal was cured, it is difficult to conclude that the Defendant again served the judgment of the first instance and submits a petition of appeal by the person who is legally bound to legally take over the lawsuit is a demand for a bypassive procedure or unnecessary

6) There is no other ground or evidence or evidence to acknowledge that the instant appeal filed by ○○ individual without undergoing the taking-over procedure under the status of suspension of the proceedings due to a declaration of bankruptcy is lawful.

2. Conclusion

Therefore, the appeal of this case is unlawful, so it is decided to dismiss it. It is so decided as per Disposition.

Judges Embrypon (Presiding Judge) Lee Woo-won