[1] The case holding that since a lawsuit filed against the bankrupt who holds the status of the owner or manager of the trust property and the status of the owner of the proprietary property is an exercise of a sub-right to claim reimbursement of expenses against the bankrupt who held the trust property as the owner or manager of the trust property, and the bankrupt who holds the right to claim reimbursement of expenses against the bankrupt who held the trust property as the owner or manager of the trust property is an exercise of sub-right to claim reimbursement of expenses against the owner or manager

[2] Where a trustee is declared bankrupt while a lawsuit is pending and his/her duties are terminated and a new trustee is not appointed, whether the trustee in bankruptcy who is in charge of liquidation of trust property pursuant to Article 11 of the Trust Act is qualified to take over the trust property (negative)

[1] Article 60 of the former Bankruptcy Act (repealed by Act No. 7428 of March 31, 2005) (see current Article 347 of the Debtor Rehabilitation and Bankruptcy Act) / [2] Article 236 of the Civil Procedure Act, Article 11 of the Trust Act

The trustee in bankruptcy of Creart Trust Co., Ltd., the bankrupt taking over the lawsuit of Creart Trust Co., Ltd.

Dongyang Total Financial Securities Co., Ltd. (Law Firm Namsan, Attorneys Hah-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Order 2002Na63734 dated February 9, 2006

The reappeal is dismissed.

The grounds of reappeal are examined.

1. As to the grounds of reappeal Nos. 1 and 3

The court below rejected the claim that the bankrupt company's claim that the bankruptcy trustee can take over the lawsuit concerning the property belonging to the bankrupt foundation, on the ground that the bankrupt company's claim that the bankrupt company is the owner or manager of the trust property and the status of the owner of the proprietary property as the owner of the trust property, and the claim for reimbursement of expenses that is the object of the concession right established in the Dongyang comprehensive Financial Securities Corporation (hereinafter "Dongyang Securities Corporation") is the right of the bankrupt as the owner or manager of the trust property to claim reimbursement against the bankrupt of the owner or manager of the trust property, and the Doyang Securities Co., Ltd. (hereinafter "Dongyang Securities") is the right to claim reimbursement against the owner or manager of the trust property, which belongs to the bankrupt as the owner or manager of the trust property, and is seeking direct reimbursement of expenses within the limit of its claim amount. Thus, the court below rejected the claim that the bankruptcy trustee's claim for reimbursement of expenses cannot be seen as a lawsuit claiming the attribution of property belonging to the bankrupt foundation, or it cannot be seen as a lawsuit that belongs to the property of the bankrupt.

In addition, the court below held that the trustee is eligible to take over the trust property under the supervision of the court pursuant to Article 11 (2) and (1) of the Trust Act in cases where the trustee completes his/her duties and is not appointed as a new trustee as a part of his/her duties, the trustee shall take custody of the trust property and perform acts necessary for the transfer of the trust affairs until the trustee becomes able to perform the trust affairs in cases where the trustee completes his/her duties upon the declaration of bankruptcy under Article 11 (2) and (1) of the Trust Act. However, in light of Article 236 of the Civil Procedure Act, Article 11 of the above Trust Act provides that the trustee shall take custody of the trust property and take over the litigation procedures where the trustee's duties are terminated and the new trustee must take over the trust property, it cannot be deemed that Article 11 of the above Trust Act provides that the trustee bears temporary management obligations for the trust property, including the right to conduct a lawsuit against the trust property, and the above provision alone does not constitute a ground for taking over the trust property as part in the bankruptcy.

2. As to the second ground for reappeal

The court below rejected the claim of the claimant for the lawsuit that the trustee in bankruptcy can take over the lawsuit because it is against the bankrupt who is in the status of the owner of the proprietary property because the bankrupt's claim for the payment of the money appropriated for the expenses of the defendant under a pledge contract concluded with the bankrupt because the money was appropriated for the expenses of the bankrupt as the proceeds of sale of the trust business by arranging the trust business in this case. The court below rejected the claim of this case on the ground that the claim of this case can not be viewed as a claim under the above pledge contract as a direct exercise of the right to demand reimbursement of expenses against the owner of the trust property or manager of the trust property as the exercise of the right to demand reimbursement of expenses. In light of the records, the judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles as to extinguishment of the pledge, incomplete hearing, omission

3. As to the fourth ground for reappeal

The court's exercise of the right to ask for Elucidation refers to giving an opportunity to correct or supplement it when there is any inconsistency in the parties' arguments or incomplete or unclear points, and urging the submission of evidence as to the facts of dispute. The same act of inducing the submission of the requirement or independent means of attack and defense, which the parties did not assert, is in violation of the principle of pleading (see Supreme Court Decision 2000Da22362, Aug. 22, 2000).

In light of the above legal principles, the court below's decision which did not explain whether the applicant for a motion to intervene in the defendant's case or the applicant for a motion to intervene in the independent party in this case does not err in exercising the right to request for explanation.

The grounds for reappeal are all unacceptable, and they are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)