2016Da25300 Loans

A and B by the bankrupt, the bankruptcy trustee and the joint bankruptcy trustee of the Credit Union

K&C Co., Ltd.

C

Gwangju District Court Decision 2015Na12549 Decided May 18, 2016

August 29, 2016

The judgment of the court below is reversed.

All appeals by the defendant and the motion for intervention by the plaintiff succeeding intervenor are dismissed.

The intervenor succeeding to the plaintiff shall bear part of the costs of lawsuit after appeal, and the remainder shall be borne by the defendant.

The grounds of appeal are examined.

1. The validity of a final and conclusive judgment shall not be excluded unless an appeal for a subsequent subsequent completion is filed within the period prescribed by Article 173 of the Civil Procedure Act (see, e.g., Supreme Court Decisions 76Da2400, Sept. 12, 1978; 79Da505, Sept. 25, 1979).

In addition, a third party who has succeeded to the whole or part of the right or obligation which is the object of a lawsuit while the lawsuit is pending before the court, may file an application for intervention in succession with the court in which the lawsuit is pending (Articles 81 and 79 of the Civil Procedure Act). Such application for intervention falls under a kind of lawsuit, and when there is any defect in the requirements for intervention, the application for intervention shall be dismissed by judgment through pleadings (see, e.g., Supreme Court Decision 2011Da85789, Apr. 26,

2. The record reveals the following facts.

A. On January 30, 2002, the court of first instance rendered a favorable judgment (hereinafter “the judgment of the court of first instance”) against the Plaintiff on the loan claim by the Plaintiff (hereinafter “the loan claim of this case”) after delivering a duplicate of the complaint of this case and the notice of the date of pleading to the Defendant by public notice, and proceeding with the procedure of pleading by public notice. On February 15, 2002, the original copy of the judgment was also sent to the Defendant by public notice, and the judgment of the court of first instance became final and conclusive due to the expiration of the period of filing an appeal.

B. Meanwhile, the Intervenor succeeding to the Plaintiff (hereinafter “ Intervenor”) filed a lawsuit against the Defendant against the Defendant for the claim for the amount of transfer money, Seoul Central District Court Decision 2012Da37575, and the said court rendered a judgment in favor of the Intervenor on October 12, 2012. In the case of the same court No. 2015Na37541, the appellate court of the instant case, which was the appellate court, ordered the Defendant on October 27, 2015, the presiding judge issued the first instance judgment on the date for pleading, and ordered the Defendant to file an subsequent appeal while notifying the Defendant that the delivery to the Defendant was made by public notice. The Defendant filed an appeal subsequent to the first instance judgment on November 26, 2015, and thereafter, claimed that the Intervenor acquired the instant claim from the Plaintiff on February 22, 2016.

3. Examining the above facts in light of the legal principles as seen earlier, it is determined as follows.

A. Since the Defendant was sentenced by the presiding judge of the Seoul Central District Court case No. 2015Na37541 on October 27, 2015, and the original copy of the judgment was known to the Defendant by being notified of the fact that the original copy of the judgment was served by means of service by public notice, the grounds for not complying with the peremptory term as to the appeal do not exist. However, inasmuch as the Defendant’s subsequent appeal against the judgment of the first instance court was filed on November 26, 2015, the subsequent supplement of the judgment of the first instance court was filed by November 26, 2015, it is unlawful as it was filed beyond the subsequent supplement period under Article 173 of the Civil Procedure

B. As long as the appeal filed by the Defendant subsequent completion of the instant case is unlawful, the final judgment of the first instance court of this case, which occurred due to the expiration of the period of filing a subsequent appeal after service by public notice, shall not be excluded, and the appeal shall not continue to have been

In addition, the application for succession is required to continue the lawsuit between others, and thus, the application for succession is required.

Even if the Plaintiff filed an application for intervention in succession after submitting the subsequent petition of appeal following the subsequent supplement of this case, it is unlawful because it was filed before the appellate trial lawsuit has not been pending, and it does

C. Nevertheless, the lower court dismissed the Plaintiff’s claim on the merits and rendered a judgment citing the Intervenor’s claim on the erroneous premise that the Intervenor’s motion for intervention in succession is lawful without rejecting the Defendant’s subsequent supplement of appeal and the Intervenor’s motion for intervention in succession.

Therefore, the judgment of the court below is erroneous in the misunderstanding of legal principles as to the validity of an appeal subsequent to improper supplement, validity of a final and conclusive judgment, and requirements for application for intervention in succession.

Ultimately, the judgment of the court below should be reversed. Since it is sufficient for the Supreme Court to directly render a judgment, all appeals by the defendant and the motion for intervention by the intervenor are dismissed.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed and remanded, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Kim Gin-young