(영문) 대법원 2016.6.9.선고 2016다7692 판결

According to Articles 584(1) and 406(1) of the Debtor Rehabilitation and Bankruptcy Act, when a lawsuit filed by an individual rehabilitation creditor is pending in the court at the time the individual rehabilitation procedure commenced, the proceedings shall be interrupted until the takeover of the lawsuit or the completion of the individual rehabilitation procedure is commenced. In a case where a creditor revocation lawsuit is pending and a judgment was rendered by the court without knowledge of the decision to commence the individual rehabilitation procedure but the debtor’s lawsuit is pending without being aware of the fact that the decision to commence the individual rehabilitation procedure was rendered, the judgment was rendered and tried and rendered in a state where the debtor, who is to take over the litigation procedure upon the decision to commence the individual rehabilitation procedure, is unable to perform the legal act and thus, the same applies to the case where the debtor was not represented legally by an agent (see, e.g., Supreme Court Decision 2013Da73780, May 29, 20

The Plaintiff asserts that the transfer contract for the transfer of the name of building permit for the instant building concluded between the obligor and the Defendant with respect to the claim for the return of the lease deposit against the obligor C (hereinafter referred to as the “debtor”) is a fraudulent act detrimental to the Plaintiff. The Plaintiff is seeking the revocation of the transfer contract and the change of the name of the owner of building permit for the instant building to the obligor.

According to the records, the court of first instance, when the complaint of this case sent to the defendant's domicile due to the defendant's resident registration was unable to serve and proceed with pleadings by service by public notice, and rendered a judgment citing the plaintiff's claim. Accordingly, the defendant filed an appeal for subsequent completion, and the debtor was ordered to commence individual rehabilitation procedures as of November 18, 2015, Daejeon District Court 2015 and 25626, which was before the closing of argument in the court below. The court below affirmed the defendant's appeal and dismissed the plaintiff's claim by accepting the first instance court's appeal after closing the proceedings in the state where the debtor's appeal was not accepted due to the debtor's lack of knowledge of the decision to commence individual rehabilitation procedures.

Examining these facts in light of the legal principles as seen earlier, the judgment of the court below is erroneous in the misapprehension of legal principles as to the interruption of litigation procedures and the acceptance of litigation, since the debtor, who is to take over litigation procedures due to the commencement order of individual rehabilitation procedures, is tried and sentenced to the court below after

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and 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.