Seoul Guarantee Insurance Co., Ltd. (Attorney Kim Jin and one other, Counsel for the defendant-appellant)

Defendant (Attorney Kim Jin-jin, Counsel for defendant-appellant)

April 4, 2012

Seoul Central District Court Decision 2010Kahap120512 Decided December 16, 2011

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The primary claim: As to the real estate stated in the separate sheet (hereinafter “instant real estate”), the sales contract concluded on February 4, 2009 between the defendant and the co-defendant 4 of the court of first instance (the Nonparty of the judgment of the Supreme Court) is revoked; and the defendant will implement the procedure for registration cancellation of ownership transfer registration completed on February 25, 2009 by the Busan District Court's Busan District Court's registry office (the Nonparty of the judgment of the court of first instance).

Preliminary claim: The defendant shall pay to the plaintiff an amount at the rate of 50 million won per annum from the day following the day when this judgment became final and conclusive to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The reasoning for this Court’s explanation is that it is identical to the corresponding part of the judgment of the first instance except for the following changes or additions, and thus, it is acceptable to accept it as it is in accordance with Article 420 of the Civil Procedure Act

【Revised Part】

Part 4 of the decision of the court of first instance shall be changed to "Nos. 1 and 2" in Part 14 of the decision of the court of first instance.

[Supplementary Parts (No. 13 of the first instance judgment)]

F. On March 24, 2009, the Defendant filed an application for individual rehabilitation with the Changwon District Court 2009dan8, and the above court rendered a decision to commence rehabilitation proceedings on March 24, 2009, stating that “the Defendant shall commence rehabilitation proceedings against the Defendant. The Defendant shall not appoint a manager against the Defendant, and shall be deemed a custodian.”

2. We examine ex officio the legality of the lawsuit.

Article 78 of the Debtor Rehabilitation and Bankruptcy Act provides that "the administrator shall be a party in the lawsuit concerning the debtor's property." Since the facts that the decision to commence rehabilitation procedures was rendered on March 24, 2009 by the Changwon District Court 2009No. 8 on March 24, 2009 against the defendant are recognized as above, the defendant has no standing to be a party in the lawsuit concerning the defendant's property (in the case of this case where the decision to commence rehabilitation procedures has been made against the defendant who is a personal debtor, the defendant has a qualification and a custodian as the debtor, at the same time as the debtor himself/herself. However, on April 4, 2012, the plaintiff did not submit any opinion, regardless of the court's request for the explanation of whether the defendant is a party to the lawsuit in this case, and on June 19, 2012, the plaintiff did not receive any specific opinion from the court as to whether the party to the lawsuit in this case is the debtor as the debtor and whether the defendant as the administrator was the debtor."

3. Conclusion

Therefore, the lawsuit of this case filed against the defendant who is not a custodian is unlawful and thus dismissed. The judgment of the court of first instance is unfair in conclusion, and thus, it is so decided as per Disposition by the assent of all participating Justices to dismiss the lawsuit of this case.

Judges Park Jong-dae (Presiding Judge)