Whether a lawsuit for revocation of a fraudulent act based on a bankrupt’s claim is determined based on the bankruptcy trustee’s knowledge of the fraudulent act (negative)

If the Bankruptcy Act provides that the bankruptcy trustee becomes the plaintiff or the defendant in a lawsuit against the bankrupt estate, it is limited to the recognition of the standing to be the party in the legal and technical request under the Bankruptcy Act, and even if the bankruptcy trustee acts in his name, it is not subject to the substantive law or the litigation law, but it is merely the representation or representation of the debtor based on the rights of the bankrupt. Thus, whether the debtor was aware of the fraudulent act in the lawsuit against revocation of fraudulent act based on the claim of the bankrupt shall be based on the bankrupt.

Article 406(2) of the Civil Act, Article 7 of the Bankruptcy Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant-appellant-appellant-appellee)

Korea Deposit Insurance Corporation (Law Firm Han field, Attorneys Kim Dong-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 200Na14488 delivered on September 2, 200

Daejeon District Court Decision 2002Gahap2069 Delivered on January 23, 2003

June 5, 2003

1. The plaintiff's appeal is dismissed.

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

(1) The judgment of the court of first instance shall be revoked. (1) On real estate indicated in the separate sheet No. 1. 1. (2) On February 29, 200, the agreement to establish a mortgage on February 19, 200 between the defendant Lee Jong-hun and the defendant Han-young shall be revoked; (2) the procedure to cancel the registration of the establishment of a mortgage on March 6, 1998, which was completed on March 1, 1998; (3) the procedure to cancel the registration of the establishment of a mortgage on March 6, 1998, which was completed on March 9, 197; and (2) the procedure to cancel the registration of the ownership transfer on February 10, 198, which was completed on March 9, 197; and (3) the procedure to cancel the registration of the ownership transfer on the real estate indicated in the separate sheet No. 97. 1. 1. 3; and (2) the defendant Park Young-hee shall cancel the registration of the ownership between the defendant Park and Lee Jong-hee.

1. Quotation of the first instance judgment

The reasons why a member is to state on this case are as follows, except for the addition of the judgment below 2.2 to the second below, the reasoning of the judgment below is as stated in the reasoning column of the judgment of the first instance. Thus, it is cited in accordance with Article 420 of the Civil Procedure Act.

2. The addition;

The plaintiff asserts that the lawsuit of this case brought before the lapse of one year from the above is lawful, since the Korea Deposit Insurance Corporation, a trustee in bankruptcy, of the Chungcheongnam-Nam Mutual Savings and Finance Company, applied for provisional disposition prohibiting disposal of the real estate of this case, knew that the debtor had committed a fraudulent act around May 2001, when the creditor was declared bankrupt and was appointed as the trustee in bankruptcy.

However, if the Bankruptcy Act provides that a bankruptcy trustee becomes the plaintiff or defendant in a lawsuit against the bankrupt estate, it is limited to the recognition of the standing to be the party in the legal and technical request under the Bankruptcy Act, and even if the bankruptcy trustee acts in his own name, it is not subject to the substantive law or the litigation law, but is merely an act of representation or representation on the basis of the rights of the bankrupt (see Supreme Court Decision 88Meu26987, Nov. 13, 1990). Thus, the issue of whether the debtor was aware of the fraudulent act in a lawsuit against revocation of a fraudulent act based on the bankrupt's claim shall be based on the bankrupt, and as seen above, the lawsuit against revocation of the fraudulent act in this case is unlawful unless the lawsuit in this case was brought more than one year from the date on which the Chungcheong Mutual Saving and Finance Company of the bankrupt knew the debtor's fraudulent act.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

Judges Lee In-bok (Presiding Judge)