[1] Where the litigation procedures are interrupted due to the declaration of bankruptcy of the debtor during the course of the lawsuit on the bankruptcy claim, the procedure for the confirmation of the bankruptcy claim, and in such a case, whether the parties can file an application for resumption of the lawsuit in advance with the status that the bankruptcy claim is not an objection

[2] The validity of the judgment rendered by the court without knowledge of the bankruptcy of either party during the proceeding, in a state where the trustee in bankruptcy or the other party’s lawsuit is not pending, and whether the same applies to the case where the court accepted the application for resumption of an unlawful lawsuit and rendered a judgment after the lawsuit is pending (affirmative)

[1] Article 239 of the Civil Procedure Act; Articles 423, 424, 447, 458, 462, and 464 of the Debtor Rehabilitation and Bankruptcy Act / [2] Articles 33 and 347 of the Debtor Rehabilitation and Bankruptcy Act; Articles 239, 247, and 424(1)4 of the Civil Procedure Act

[1] [2] Supreme Court Decision 2017Da287587 Decided April 24, 2018 (Gong2018Sang, 952) Decided September 12, 2013 (Gong1981, 13792) / [2] Supreme Court Decision 80Da1895 Decided March 10, 1981 (Gong1981, 13792)

The Nonparty (Counterclaim Defendant)’s bankruptcy trustee of the Nonparty (Counterclaim Defendant) who is a bankruptcy trustee of the Nonparty, the Nonparty’s bankruptcy debtor’s legal administrator of the Nonparty’s legal administrator.

Dae-Sast Co., Ltd. (Law Firm ASEAN, Attorney Go Chang-il, Counsel for the defendant-appellant)

Suwon District Court Decision 2017Na62594, 62600 decided August 28, 2018

The part of the lower judgment regarding the counterclaim claim is reversed, and that part of the case is remanded to the Suwon District Court. The Plaintiff (Counterclaim Defendant)’s appeal on the principal lawsuit is dismissed.

The grounds of appeal are examined.

1. As to the Plaintiff’s ground of appeal on the counterclaim

A. When the parties are declared bankrupt, the litigation procedures relating to the bankrupt estate shall be interrupted (Article 239 of the Civil Procedure Act); and any bankruptcy claim, which is a property claim arising from a cause before the bankruptcy is declared against the debtor, may not be exercised without resorting to bankruptcy procedures (Articles 423 and 424 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “the Debtor Rehabilitation Act”). Therefore, when a bankruptcy is declared while a lawsuit relating to a bankruptcy claim is pending, the litigation procedures shall be suspended; and the bankruptcy creditor shall report the claim to the competent court of the bankruptcy case, as prescribed by the Debtor Rehabilitation Act. In the claim investigation procedure, if a claim is declared bankrupt as a result of the lack of an objection to the bankruptcy claim, and if the bankruptcy creditor raises an objection to the bankruptcy claim in the claim investigation procedure, and if the bankruptcy creditor seeks confirmation of the right, the lawsuit pending in the lawsuit (Article 464 of the Debtor Rehabilitation Act) shall be taken over with all of the objectors as the other party, and it shall not be deemed unlawful at the time bankruptcy creditor’s request for continuation of the claim(Article 4628 of the same Act).

Meanwhile, in a case where a court was declared bankrupt against one of the parties while a lawsuit was pending, but where the bankruptcy trustee or the other party’s lawsuit was declared as having been pending without knowledge of the declaration of bankruptcy and the court was declared as having been going to proceed with the litigation as they were in the absence of legal proceedings, that judgment is unlawful as it was tried and sentenced in a state where a legitimate person who may be involved in the lawsuit was unable to perform legal proceedings. Thus, just as in the case where the party was not lawfully represented by an agent (see, e.g., Supreme Court Decision 2012Da95486, 95493, Sept. 12, 2013). Furthermore, in a case where the court accepted an application for resumption of an unlawful lawsuit and declared a judgment as a party to the lawsuit, it was tried and sentenced by the legitimate party who may be involved in the lawsuit, and thus, it is unlawful as above (see Supreme Court Decision 80Da1895, Mar. 10, 19

B. According to the reasoning of the judgment below and the records, the defendant filed a counterclaim against the non-party who was the plaintiff of the first instance trial (hereinafter referred to as "the non-party"), seeking the payment of unpaid lease deposit, and the non-party was declared bankrupt on May 15, 2018 by the Seoul Rehabilitation Court 2018Hadan1983 (hereinafter referred to as "the non-party"), which was pending in the judgment of the court below, and the court below permitted the non-party's trustee's request for the takeover of the lawsuit on July 12, 2018 and taken over the lawsuit by the non-party, and the court below dismissed the plaintiff's main lawsuit on July 24, 2018 after closing the pleadings on July 24, 2018, and rendered a judgment citing part of the counterclaim by the defendant.

C. Examining the aforementioned factual basis in light of the legal principles as seen earlier, the Nonparty’s request for counterclaim of this case is seeking the performance of a bankruptcy claim, and the Nonparty’s request for resumption of a lawsuit filed in advance with respect to a counterclaim is unlawful as it is unlawful, since the Nonparty’s request for resumption of lawsuit was not an objection against a bankruptcy claim. Nevertheless, the lower court erred by accepting this request and rendered a judgment on the counterclaim by designating the trustee in bankruptcy as a lawful litigation agent of the Nonparty and having him/her the Nonparty as a party thereto. Therefore, the part concerning the counterclaim of the lower judgment is unlawful as it was deliberated and sentenced under a state where the Nonparty, who is a legitimate party, was unable to perform legal litigation, and thus was not legally represented by an agent

2. As to the ground of appeal on the principal lawsuit

According to the reasoning of the judgment below, the court below rejected the plaintiff's primary claim on the ground that it is insufficient to recognize that the lease contract between the non-party and the defendant was concluded on the third floor of the building of this case under the condition that the non-party and the defendant would deposit the plaintiff in the office, or that the defendant would have made the defendant to deposit the plaintiff in the third floor of the building of this case. The plaintiff's preliminary claim on the premise that the lease contract of this case was concluded by the defendant

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the grounds, omission of judgment

3. Therefore, without examining the Defendant’s grounds of appeal on the counterclaim, the part of the judgment below regarding the counterclaim claim is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal on the principal lawsuit is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)