Plaintiff (Re-Defendant) (Law Firm Cho & Lee, Attorneys Lee Lee In-hoon, Counsel for the plaintiff-appellant)

A custodian ○○○○○○○ (Law Firm Shin, Attorneys Inn Inn Jae-gu et al., Counsel for the defendant-appellant)

May 12, 2016

Busan District Court Decision 2014Da82428 Decided March 6, 2015

Busan District Court Decision 2015Na5337 Decided August 13, 2015

1. The defendant's petition for retrial is dismissed;

2. The costs of retrial shall be borne by the defendant;

1. Purport of claim

The defendant (hereinafter "the defendant") shall pay to the plaintiff (the defendant for review; hereinafter "the plaintiff") 10 million won and 30% interest per annum from August 23, 2011 to the day of complete payment, jointly and severally with co-defendants, Co-defendants, Co-defendants, Ltd., Ltd., and the non-party (the plaintiff for review; hereinafter "the plaintiff").

2. Purport of appeal and request for retrial

Among the judgment of the first instance court, the part against the defendant and the judgment subject to review shall be revoked, and the plaintiff's claim shall be dismissed.

1. Determination of the original judgment

The following facts are no dispute between the parties or evident in records:

A. On March 6, 2015, the Plaintiff rendered a favorable judgment with the purport that “The Defendant jointly and severally pays to the Plaintiff KRW 100,000,000 and an amount equivalent to 30% per annum from August 23, 2011 to the date of full payment,” which read that “The Defendant would pay to the Plaintiff an amount equivalent to 100,000,000 won and an amount equivalent to 30% per annum from August 23, 2011.”

B. Accordingly, although the Defendant appealed to Busan District Court 2015Na53379, the appellate court rendered a judgment dismissing the appeal on August 13, 2015, which became final and conclusive around that time.

2. Grounds for retrial and determination

A. The defendant's assertion

Although the defendant had commenced rehabilitation procedures during the process of a judgment subject to review, the judgment subject to review was conducted with excessive restriction. There are grounds for retrial under Article 451 (1) 3 of the Civil Procedure Act in the judgment subject to review.

B. Determination

(1) Article 59(1) of the Debtor Rehabilitation and Bankruptcy Act provides that “If a decision to commence a rehabilitation procedure is rendered, the proceedings relating to the debtor’s property shall be interrupted.” Therefore, if a court rendered a judgment by proceeding with proceedings without knowledge of either party when a decision to commence a rehabilitation procedure was rendered against either party during the proceeding, and without proceeding with knowledge of such decision, the said judgment is erroneous in the same manner as the administrator, who is to take over the proceedings, was tried and sentenced by a decision to commence a rehabilitation procedure in a state in which it is impossible to conduct legal proceedings due to a decision to commence a rehabilitation procedure of one party, and thus, the said judgment was rendered in a state in which the administrator, who is to take over the proceedings, was not legally represented by an agent (see, e.g.

Meanwhile, in order to constitute a ground for retrial under Article 451(1)3 of the Civil Procedure Act, “where there is any defect in granting a legal representation right, powers of attorney, or authority required for conducting the procedural acts by an agent,” the authorityless representative must be the case where the principal or his/her attorney was unable to conduct the substantive procedural acts on behalf of himself/herself or due to the defect of authority (see, e.g., Supreme Court Decisions 92Da259, Dec. 22, 1992; 2005Da10470, Jul. 12, 2007). In a retrial case, where a ground for retrial is asserted as a ground for retrial of the authority of attorney, the burden of proof is against the Plaintiff asserting it (see, e.g., Supreme Court Decisions 9Da14822, Sept. 7, 199; 209Da13233, Jun. 10, 2010).

In light of the foregoing legal principles, if the instant case were to be considered in light of the entirety purport of the pleadings in the written evidence Nos. 5 and 6, the Defendant’s application to commence individual rehabilitation procedures on October 24, 2014 (Seoul District Court Decision 2014Kadan142) was made on December 30, 2014, and the repayment plan was authorized as of September 7, 2015. The judgment subject to review is limited to the above decision to commence rehabilitation and the fact that the judgment was rendered by proceeding the litigation procedures without undergoing the procedure for filing a lawsuit.

However, according to the evidence as seen earlier, it is evident that the Defendant became a custodian in the rehabilitation proceedings, and the Defendant’s attorney was present at the date for pleading of the judgment subject to a retrial and stated a petition of appeal and a preparatory document. In addition to the fact that, in the event that a decision was rendered without a custodian’s appointment, the obligor has the qualification as a custodian and the qualification as a custodian, and thus, can indicate the Defendant’s status as a custodian in the manner of “Correction of Party Indication” (see Supreme Court Decision 2012Da68279, Aug. 22, 2013). The mere fact that a decision rendered to commence a personal rehabilitation against the Defendant was rendered, is insufficient to deem that the Defendant’s or his/her attorney was unable to conduct a substantive litigation due to the lack of power of attorney, and there is no other evidence to deem otherwise. The Defendant’s assertion is not acceptable.

3. Conclusion

The defendant's request for retrial of this case is dismissed as there are no grounds.

Judges Seo Chuncheon (Presiding Judge)