Open Decision Ledger · Rehabilitation & bankruptcy
Succession to a pending suit before the bankruptcy claim is disputed
Supreme Court, Apr. 25, 2019, 2018Da270951 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 임대차보증금·약정금
Official text on the National Law Information Center
Question
Where a suit on a bankruptcy claim is pending and the debtor is declared bankrupt, must the creditor first file a claim and meet an objection in the claims-examination procedure before succeeding to the suit, and what is the effect of a judgment rendered without a lawful succession or after an unlawful succession application was accepted?
Holding
No. The bankruptcy trustee does not succeed to a pending suit on a bankruptcy claim as of course; the creditor must file a claim with the court having the bankruptcy case, and only where the claim is objected to in the claims-examination procedure and the creditor seeks confirmation of the right must the creditor succeed to the pending suit with all objectors as counterparts and change the claim into a claim-confirmation action, so an application made before the claim becomes a disputed claim is unlawful. A judgment rendered while the court was unaware of the bankruptcy declaration and no succession had taken place is unlawful, because it was heard and delivered when the lawful party entitled to take part in the suit could not perform procedural acts as a matter of law, just as in a case of improper representation. A judgment delivered after the court accepted an unlawful succession application is unlawful in the same way.
Points at issue, verbatim
파산채권에 관한 소송 계속 중 채무자에 대한 파산선고로 소송절차가 중단된 경우, 파산채권의 확정 절차 및 이때 당사자가 파산채권이 이의채권이 되지 아니한 상태에서 미리 소송수계신청을 할 수 있는지 여부(소극)
Unofficial English translation
Where, during a lawsuit concerning a bankruptcy claim, the litigation proceedings are suspended by a declaration of bankruptcy against the debtor, the procedure for determination of the bankruptcy claim and whether a party may file in advance an application for continuation of the litigation at a time when the bankruptcy claim has not become a claim subject to objection (negative)
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 반소청구 부분을 파기하고, 이 부분 사건을 수원지방법원에 환송한다. 원고(반소피고)의 본소에 관한 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed insofar as it concerns the counterclaim, and the case in this part is remanded to the Suwon District Court. The plaintiff's (defendant in counterclaim) final appeal insofar as it concerns the principal claim is dismissed.
Form of the test
Elements stated Stated in the decision
채권조사절차에서 그 파산채권에 대한 이의가 있어 파산채권자가 그 권리의 확정을 구하고자 하는 때에는 이의자 전원을 소송의 상대방으로 하여 위 계속 중이던 소송을 수계한 후(채무자회생법 제464조) 청구취지 등을 채권조사확정소송으로 변경하여야 한다(채무자회생법 제462조).
Unofficial English translation
Where, in the claim investigation procedure, there is an objection to the bankruptcy claim and the bankruptcy claimant seeks to have the right confirmed, the bankruptcy claimant must join all objectors as opposing parties and take over the pending lawsuit (Article 464 of the Debtor Rehabilitation and Bankruptcy Act) and then amend the statement of the claim, etc. into a lawsuit for determination of a claim (Article 462 of the Debtor Rehabilitation and Bankruptcy Act).
Factors
- 파산채권에 관한 소송 계속 중 채무자에 대한 파산선고로 소송절차가 중단된 경우
- 파산채권의 확정 절차 및 이때 당사자가 파산채권이 이의채권이 되지 아니한 상태에서 미리 소송수계신청을 할 수 있는지 여부(소극)
- 법원이 소송 계속 중 일방 당사자에 대한 파산선고 사실을 알지 못한 채 파산관재인이나 상대방의 소송수계가 이루어지지 아니한 상태 그대로 소송절차를 진행하여 선고한 판결의 효력
- 부적법한 소송수계신청을 받아들여 소송을 진행한 후 판결을 선고한 경우에도 마찬가지인지 여부(적극)
Unofficial English translation
• Where, during a lawsuit concerning a bankruptcy claim, the litigation proceedings are suspended by a declaration of bankruptcy against the debtor
• the procedure for determination of the bankruptcy claim and whether a party may file in advance an application for continuation of the litigation at a time when the bankruptcy claim has not become a claim subject to objection (negative)
• the effect of a judgment rendered after the court, without knowing of the declaration of bankruptcy against one of the parties during the pendency of the lawsuit, proceeded with the litigation proceedings and pronounced judgment in a state where neither the bankruptcy trustee nor the opposing party had taken over the litigation
• whether the same applies even where the court proceeded with the litigation and pronounced judgment after accepting an application for continuation of the litigation that was not filed in a lawful manner (affirmative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2018. 4. 24. 선고 2017다287587 판결(공2018상, 952)
Unofficial English translation
Supreme Court Decision 2017Da287587 decided April 24, 2018 (Gong 2018 Sang, 952)
Decisions referred to
[1][2] 대법원 2013. 9. 12. 선고 2012다95486, 95493 판결, 대법원 2018. 4. 24. 선고 2017다287587 판결(공2018상, 952) / [2] 대법원 1981. 3. 10. 선고 80다1895 판결(공1981, 13792)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
How is a judgment already rendered in ignorance of the bankruptcy declaration to be challenged, given that the Court called it unlawful but did not state whether it is void of its own force or must be set aside through a particular remedy?
A later decision on how such an unlawful judgment must be challenged, or the judgment delivered on the remand by the Suwon District Court on the counterclaim, would require this entry to be read again. So would an amendment to Articles 462 or 464 of the Debtor Rehabilitation and Bankruptcy Act on the claim-confirmation action and succession.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “How is a judgment already rendered in ignorance of the bankruptcy declaration to be challenged, given that the Court called it unlawful but did not state whether it is void of its own force or must be set aside through a particular remedy?” vs Independent “Will the counterclaim become disputed through claim examination, allowing its merits to be determined after lawful resumption on remand?”
The primary reading asks whether a judgment rendered in ignorance of the bankruptcy is void or must be challenged by a particular remedy. The independent reading asks whether the counterclaim can become disputed through claim examination and be decided after lawful resumption on remand.
파산채권에 관한 소송 계속 중 채무자에 대한 파산선고로 소송절차가 중단된 경우, 파산채권의 확정 절차 및 이때 당사자가 파산채권이 이의채권이 되지 아니한 상태에서 미리 소송수계신청을 할 수 있는지 여부(소극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Suwon District Court, in its judgment of 28 August 2018 (2017Na62594, 2017Na62600), was hearing the original plaintiff's main claim when the defendant filed a counterclaim for payment of an unpaid lease deposit, and the original plaintiff was declared bankrupt by the Seoul Bankruptcy Court on 15 May 2018 (case 2018HaDan1983). Because the defendant had filed no claim so that no claims-examination procedure had been carried out, the court below on 12 July 2018 granted the bankruptcy trustee's application to succeed to the suit, closed the oral argument on 24 July 2018, and on 28 August 2018 dismissed the main claim while partially granting the counterclaim.
Supreme Court standard: The Supreme Court held that the counterclaim sought performance of a bankruptcy claim, so the trustee's succession application was made before the claim had become a disputed claim and was unlawful. Accepting it, treating the trustee as the lawful successor and rendering judgment with the trustee as a party was a mistake, and that part of the judgment was unlawful because it was heard and delivered while the lawful party, the original plaintiff, could not perform procedural acts as a matter of law, so it was reversed and remanded. On the main claim, however, the appellate findings that the lease was not made on the condition that a clinic or hospital take the third floor and was not procured by fraud or mistake were sound, so that appeal was dismissed.
Distinguishing conditions
- A pending suit in which the creditor has filed a claim and an objection was raised in the claims-examination procedure, so that succession with the objectors as counterparts and a change to a claim-confirmation action under Articles 464 and 462 of the Debtor Rehabilitation and Bankruptcy Act is in order.
- A pending suit in which the claim was confirmed without any objection in the claims-examination procedure, so that the suit simply becomes improper rather than one to which the trustee succeeds.
- A main claim, such as the one in this case, whose rejection the Supreme Court found to be sound on the findings below, since only the counterclaim part was reversed.
Record verification notes
Set the claim in the file against Article 423 of the Debtor Rehabilitation and Bankruptcy Act to see whether it arose from a cause preceding the bankruptcy declaration, since only then is it a bankruptcy claim governed by this decision. Then fix the date of the declaration against the date of the succession application, and check what the claims-examination procedure had produced at that moment, whether a claim had been filed and whether any objection existed. Keep the main claim separate, since it was left undisturbed.
From the official text
Points at issue
[1] 파산채권에 관한 소송 계속 중 채무자에 대한 파산선고로 소송절차가 중단된 경우, 파산채권의 확정 절차 및 이때 당사자가 파산채권이 이의채권이 되지 아니한 상태에서 미리 소송수계신청을 할 수 있는지 여부(소극) [2] 법원이 소송 계속 중 일방 당사자에 대한 파산선고 사실을 알지 못한 채 파산관재인이나 상대방의 소송수계가 이루어지지 아니한 상태 그대로 소송절차를 진행하여 선고한 판결의 효력 및 부적법한 소송수계신청을 받아들여 소송을 진행한 후 판결을 선고한 경우에도 마찬가지인지 여부(적극)
Unofficial English translation
[1] Where, during a lawsuit concerning a bankruptcy claim, the litigation proceedings are suspended by a declaration of bankruptcy against the debtor, the procedure for determination of the bankruptcy claim and whether a party may file in advance an application for continuation of the litigation at a time when the bankruptcy claim has not become a claim subject to objection (negative) [2] The effect of a judgment rendered after the court, without knowing of the declaration of bankruptcy against one of the parties during the pendency of the lawsuit, proceeded with the litigation proceedings and pronounced judgment in a state where neither the bankruptcy trustee nor the opposing party had taken over the litigation, and whether the same applies even where the court proceeded with the litigation and pronounced judgment after accepting an application for continuation of the litigation that was not filed in a lawful manner (affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결 중 반소청구 부분을 파기하고, 이 부분 사건을 수원지방법원에 환송한다. 원고(반소피고)의 본소에 관한 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed insofar as it concerns the counterclaim, and the case in this part is remanded to the Suwon District Court. The plaintiff's (defendant in counterclaim) final appeal insofar as it concerns the principal claim is dismissed.
Provisions referred to
[1] 민사소송법 제239조, 채무자 회생 및 파산에 관한 법률 제423조, 제424조, 제447조, 제458조, 제462조, 제464조 [2] 채무자 회생 및 파산에 관한 법률 제33조, 제347조, 민사소송법 제239조, 제247조, 제424조 제1항 제4호
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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