Article 239 of the Civil Procedure Act; Articles 423, 424, 447, 458, 462 and 464 of the Debtor Rehabilitation and Bankruptcy Act

Plaintiff (Attorney Lee Ho-hoon et al., Counsel for the plaintiff-appellant)

Nonparty 1 (Law Firm continental Aju, Attorney Gu classroom-dong, Counsel for the bankruptcy)

Seoul High Court Decision 2009Na70939 Decided March 11, 2010

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. When any party is declared bankrupt, the litigation procedures relating to the bankrupt estate shall be interrupted (Article 239 of the Civil Procedure Act); any bankruptcy claim which is a property claim arising from a cause that occurred before the bankruptcy is declared against the debtor cannot be exercised without resorting to the bankruptcy procedure (Articles 423 and 424 of the Debtor Rehabilitation and Bankruptcy Act); if the debtor is declared bankrupt during the continuation of a lawsuit concerning the bankruptcy claim, the litigation procedures shall be interrupted; and if the debtor is declared bankrupt during the continuation of the lawsuit concerning the bankruptcy claim, the bankruptcy creditor shall report his/her claim, as prescribed by the Debtor Rehabilitation and Bankruptcy Act, to the competent court of the bankruptcy case. When the claim is confirmed as the same as the reported claim has no objection to the bankruptcy claim, the lawsuit that has been pending becomes illegal; if the bankruptcy creditor intends to seek the confirmation of the right due to an objection to the bankruptcy claim in the claim investigation procedure, all of the objectors shall take over the lawsuit pending as the other party and revise the purport of the claim into a final lawsuit (see, e.g., Supreme Court Decision 2009Da5066, Sept.

2. According to the records, the plaintiff filed a lawsuit of this case against PSF on the ground that it acquired the claim of this case against PSFF Co., Ltd. (hereinafter "PSF")'s damage claim due to nonperformance of the contract of this case. The court of first instance dismissed the plaintiff's claim on July 22, 2009 on the ground that "the sales contract of this case became impossible without any cause attributable to PSFF," and the plaintiff appealed the claim around Oct. 7, 2009, and changed the claim of this case to the main claim on Oct. 107, 200, while adding the claim of this case to the conjunctive claim of return of unjust enrichment received by PSFFFF as the price for the sales contract of this case; the court below accepted the plaintiff's claim of this case on Nov. 30, 2009; and the court below accepted the plaintiff's claim of this case against PSFFFFFFF and the plaintiff's claim of this case as the plaintiff's claim of this case No. 21315.

3. However, since the Plaintiff’s claim seeking the lawsuit in this case against the Defendant is a claim on property arising from a cause arising prior to the declaration of bankruptcy by the AustriaF, and it is apparent that it is a bankruptcy claim under the Debtor Rehabilitation and Bankruptcy Act. In light of the legal principles as seen earlier, the court below should determine whether the Plaintiff filed a claim report in accordance with the procedure stipulated in the Debtor Rehabilitation and Bankruptcy Act, if it reported a claim on the above claim, or whether it is necessary to maintain the litigation procedures depending on whether the Plaintiff was a trustee in bankruptcy or other creditors have raised an objection on the claim inspection date, and if continued, the form of the lawsuit should be changed into a final claim confirmation lawsuit. Nevertheless, the court below concluded arguments without examining and examining this point, and declared a judgment ordering the performance of unjust enrichment. The court below erred by misapprehending the legal principles as to the declaration of bankruptcy and the validity of bankruptcy claims, which affected the conclusion

4. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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 Shin Young-chul (Presiding Justice)