[1] Where litigation procedures have been interrupted due to a bankruptcy declaration of the debtor while a bankruptcy claim is pending, the procedure for confirming the bankruptcy claim

[2] The validity of the judgment rendered by the court after proceeding the litigation procedures as they were in the state where the bankruptcy trustee or the other party's lawsuit was not pending without knowing the bankruptcy of either party during the lawsuit

[3] In a case where a lawsuit on a bankruptcy claim is pending at the time bankruptcy is declared, whether a party can file an application for resumption of a lawsuit in advance with the status that the bankruptcy claim does not raise an objection (negative)

[1] When a party is 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 prior to the declaration of bankruptcy, against the debtor, may not be exercised without resorting to bankruptcy procedures (Articles 423 and 424 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”). Therefore, if a debtor is declared bankrupt during the continuation of a lawsuit pertaining to a bankruptcy claim, the litigation procedures shall be suspended; and the bankruptcy creditor shall file a claim report with the competent court of the bankruptcy case, as prescribed by the Debtor Rehabilitation Act. If a claim is declared bankrupt during the course of a lawsuit involving a bankruptcy claim, as a result of the filing of a report on a claim as there is no objection to the claim in the claim investigation procedure, the lawsuit pending shall be deemed unlawful; if the bankruptcy creditor raises an objection to the claim in the claim investigation procedure and intends to seek the confirmation of the right, all of the objectors shall take over the lawsuit pending as the other party, and revise

[2] In a case where the court was declared bankrupt against one party while the lawsuit was pending, and where the bankruptcy trustee or the other party did not know of the declaration of bankruptcy and declared the judgment by proceeding with the litigation procedures as they were in the state where the lawsuit acceptance by the bankruptcy trustee or the other party was not achieved, the judgment is unlawful as it was in a case where a legitimate person who can be involved in the lawsuit was tried and sentenced in a state where legal litigation cannot be conducted.

[3] Where a lawsuit on a bankruptcy claim is pending at the time bankruptcy is declared, the bankruptcy creditor shall report the claim to the competent court in the bankruptcy case, and if the bankruptcy claim becomes final and conclusive as stated in the report as to the claim investigation procedure because no objection is raised, the lawsuit pending is unlawful. If an objection is raised in the claim investigation procedure, the bankruptcy creditor shall take over the litigation procedure [Article 464 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “the Debtor Rehabilitation Act”) with all of the objectors as other parties to the lawsuit, but in the case of a claim with title, the objection shall take over the litigation procedure against the bankruptcy creditor as other parties (Article 466 of the Debtor Rehabilitation and Bankruptcy Act). As such, the lawsuit on a bankruptcy claim pending at the time bankruptcy is not taken over as a matter of course by the bankruptcy creditor, but is dealt with according to the report on the claim of the bankruptcy creditor and the result of the examination of the claim. Thus, the parties cannot file a prior application for the lawsuit without being dissatisfied with the claim, and such application for

[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 / [3] Articles 447, 458, 464, and 466 of the Debtor Rehabilitation and Bankruptcy Act

[1] [2] Supreme Court Decision 2012Da95486, 95493 Decided September 12, 2013 / [1] Supreme Court Decision 2003Da66691 Decided October 27, 2005 (Gong2005Ha, 1835) Supreme Court Decision 2009Da58234 Decided October 29, 2009

Plaintiff 1 and five others (Law Firm Jin, Attorney Lee Young-chul, Counsel for the plaintiff-appellant)

TND Co., Ltd.

A trustee in bankruptcy who takes over a lawsuit by the bankrupt debtor corporation, IMBD

Seoul Central District Court Decision 2016Na81989 Decided November 10, 2017

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division. The request for a takeover of lawsuit is dismissed. The expenses incurred in the request for a takeover of lawsuit are borne by

1. The decision shall be made ex officio;

A. When a party is 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 prior to the declaration of bankruptcy against the debtor shall not be exercised without resorting to bankruptcy procedures (Articles 423 and 424 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”). Therefore, if a debtor is declared bankrupt during the continuation of a lawsuit pertaining to a bankruptcy claim, the litigation procedures shall be suspended; and the bankruptcy creditor shall file a claim report with the competent court of the bankruptcy case, as prescribed by the Debtor Rehabilitation Act. When a claim is confirmed as there is no objection to the bankruptcy claim as a result of the report on the claim was filed, the lawsuit pending shall be deemed unlawful; when a bankruptcy creditor raises an objection to the bankruptcy claim in the claim investigation procedures and intends to seek the confirmation of the right, 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 2003Da636909, Oct. 27, 2005). 209>

Meanwhile, in a case where a bankruptcy was declared against one of the parties while a lawsuit was pending, but the court rendered a judgment by proceeding the litigation as it was in the state where the bankruptcy trustee or the other party did not know the fact that the bankruptcy was declared, the judgment was rendered and rendered in a state where a legitimate person who can be involved in the lawsuit was unable to perform legal litigation and thus, was tried and sentenced in a state where it was unable to perform legal litigation. Thus, just as in a case where the party was not lawfully represented by an agent, the judgment was unlawful (see, e.g., Supreme Court Decision 2012Da95486, 95

B. According to the records, after the judgment of the first instance court that partially admitted the plaintiffs' claim for damages of this case against the defendant, the court below rendered a judgment of bankruptcy against the defendant on August 28, 2017, which was prior to the closing of argument by the court of first instance, on August 28, 2017, as Seoul Rehabilitation Court 2017Hau10148, and the court below, without knowing the bankruptcy of the defendant, proceeded with the litigation proceedings in a state where the lawsuit is not conducted without knowing the bankruptcy of the defendant, and decided on October 17, 2017, which dismissed all appeals filed by the plaintiffs and the defendant on November 10, 2017.

C. Examining the above facts in light of the legal principles as seen earlier, the judgment of the court below is unlawful, just as in the case where the lawful attorney-at-law, who can be involved in the lawsuit due to the declaration of bankruptcy against the defendant, was tried and sentenced in a state where legal litigation cannot be conducted, and thus the representative was not lawfully represented. In this regard, the judgment of the court below

2. The grounds for application for succession are examined;

A. As seen earlier, if a lawsuit on a bankruptcy claim is pending at the time bankruptcy is declared, the bankruptcy creditor shall report the claim to the competent court of the bankruptcy case, and if the bankruptcy claim is confirmed as stated in the report as the claim investigation procedure has no objection, the lawsuit pending becomes illegal. If an objection is raised in the claim investigation procedure, the bankruptcy creditor shall take over all of the objectors as the other party to the lawsuit (Article 464 of the Debtor Rehabilitation Act). However, if an objection is raised in the claim investigation procedure, the bankruptcy creditor shall take over the lawsuit proceedings against the other party to the lawsuit (Article 466 of the Debtor Rehabilitation Act). As such, the lawsuit on a bankruptcy claim pending at the time bankruptcy is not taken over as a matter of course by the bankruptcy creditor, not by the bankruptcy creditor, but by the result of the report on the claim of the bankruptcy creditor and the investigation on the claim thereof, the party cannot file an application for a prior continuation of the lawsuit, and such a request for continuation of the lawsuit is unlawful.

B. According to the records, on January 25, 2018, the applicant filed an application to resume the instant lawsuit with this court on the ground that he/she was appointed as a trustee in bankruptcy following the declaration of bankruptcy against the Defendant. However, on February 9, 2018, the Plaintiffs reported the damage claim of this case against the Defendant to the bankruptcy court in the bankruptcy case as a bankruptcy claim, but the fact that the claim investigation procedure has not yet run is significant in this court.

C. Examining the above factual basis in light of the legal principles as seen earlier, the request for resumption of the instant lawsuit filed in advance by the applicant for resumption of the lawsuit is unlawful, where the Plaintiffs’ damage claim against the Defendant, which is a bankruptcy claim, did not have any objection to the claim.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination, and the request for a takeover of a lawsuit is dismissed, and the cost for the request for a takeover of a lawsuit is borne by the requester. It is so decided as per Disposition

Justices Kim Jae-hyung (Presiding Justice)