Whether a person whose duty as a trustee has been terminated due to bankruptcy and the trustee in bankruptcy are entitled to file an appeal (negative)

Articles 11 and 42 of the Trust Act, Article 347 of the Debtor Rehabilitation and Bankruptcy Act

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

Coke Trust Co., Ltd.

The bankruptcy trustee in the bankruptcy of the Common Trust Co., Ltd. (Law Firm Roun, Attorney Kang Young-chul, Counsel for the bankruptcy)

New Bank Co., Ltd. and six others

Seoul High Court Decision 2002Na63734 decided Feb. 9, 2006

All appeals are dismissed. The costs of appeal are assessed against the appellant.

Ex officio, we examine whether the appeal of this case is legitimate.

According to the reasoning of the judgment of the court below and the records, while the plaintiff (Dongyang Total Finance Co., Ltd. filed a lawsuit, but the plaintiff taken over the lawsuit on December 1, 2001) filed a lawsuit against the defendant as the owner of trust property or manager of the trust property, and filed the lawsuit in this case against the defendant as the pledgee of the trust property or manager's right to claim reimbursement of expenses as stated in attached Table 11, 21, 22, and 24 of the judgment of the court below, and filed the lawsuit in this case to seek reimbursement of expenses directly against the owner of trust property or manager's defendant on October 1, 2002, the judgment in favor of the plaintiff was issued at the court of first instance on October 1, 202, and the defendant appointed a legal representative by filing an appeal, and dismissed the defendant's appeal from the Seoul Central District Court on December 30, 2002 and the defendant's bankruptcy trustee against the defendant on December 26, 2003.

According to this, the litigation procedure between the plaintiff and the defendant was interrupted on February 22, 2006, when the original copy of the judgment was delivered to the defendant's attorney (Articles 236 and 238 of the Civil Procedure Act), and the defendant who is a party to the lawsuit of this case under the qualification of the trustee is not entitled to file an appeal as long as the duties of the trustee have been terminated due to bankruptcy pursuant to Article 11 (1) of the Trust Act and the litigation procedure has been interrupted. In addition, according to Article 236 of the Civil Procedure Act, the litigation procedure shall take over when the duties of the trustee are terminated while the trustee is in his/her capacity while the lawsuit is pending, so the defendant's bankruptcy trustee is not entitled to take over the lawsuit of this case (Article 11 (2) and (1) of the Trust Act provides that the trustee shall take custody of trust property and conduct necessary acts until the new trustee is able to take over the trust affairs, but the defendant's right to manage and dispose of trust property shall not be deemed effective.

Therefore, the appeal by the defendant or the defendant in bankruptcy is all dismissed, and the costs of appeal are borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)