수탁자의 임무종료에 따른 소송중단 - 대법원 2014. 12. 24. 선고 2012다74304 판결 -

In this case, a plaintiff brought a civil lawsuit against a trustee for a service agreement. In the court of appeals, the dependent became insolvent, the plaintiff added second lawsuit, debts provale in bankruptcy. The plaintiff won the latter suit, but the dependent didn't pay the service agreement. After the appointment of new trustee, the plaintiff claimed new suit against the trustee for the service agreement. Because an attorney was elected by former trustee in the last lawsuit, with a successor, a bankruptcy administrator, the proceedings was not interrupted. Supreme Court say, the attorney have the right of representation for the new trustee who was taken over the former trustee's right of party. For that reason, the final judgement is effective for the new trustee regardless of a bankruptcy administrator's qualification as successor. This judgement show that, established judgement about death of parties could apply to the case of trustee change intactly. Because that case correspond a universal succession on substantive law under the article 53 of Korean Trustee Act as death of parties and the attorney represent the new trustee from the time of declaration of bankruptcy to the former trustee under the article 238 of Korean Civil Procedure Act, new trustee succeed to right of party unconditionally. Meanwhile, Supreme Court remanded after reversal the case to the appellate court with the fault that the court didn't hear sufficiently, wether the attorney have the right to appeal to an appellate court. If the attorney had the right, the latter lawsuit is in conflict with res judicata, because the former lawsuit was settled by passing of the time for final appeal. If He didn't have the right, the latter lawsuit should be dismiss by the principle of prohibition of double lawsuits, because the former lawsuit was interrupted by the time when the text of judgment was served on the attorney.