대여금
1. Revocation of a judgment of the first instance;
2. The instant lawsuit shall be dismissed.
3. The total cost of a lawsuit shall be borne individually by each party.
1. The gist of the Plaintiff’s assertion is that the Defendant and C (the decedents of the co-defendants of the first instance trial) lent KRW 34,593,520,00 to the Defendant and C (the decedents of the co-defendants of the first instance trial) as a fund for the export of sea ginseng and waste vinyl, KRW 4.4 million, KRW 4.4 million on April 7, 2010, KRW 4.4 million on May 18, 2010, KRW 34,593,520 on May 25, 2010, and KRW 34,593,520 on May 25, 2010.
2. Determination on the defense prior to the merits
A. The main sentence of Article 566 of the Debtor Rehabilitation and Bankruptcy Act provides that the obligor who has been exempted from the liability shall be exempted from the whole liability to the bankruptcy creditors except for the distribution under the bankruptcy procedures.
The exemption here means that the obligation itself continues to exist, but it is not possible to enforce the performance to the bankrupt debtor.
Therefore, when a decision to exempt a debtor from liability becomes final and conclusive, a claim that has been exempted from liability would lose the capacity to file a lawsuit (see Supreme Court Decision 2015Da28173, Sept. 10, 2015). (b)
According to the evidence evidence Nos. 2, 3, and 4, the defendant applied for adjudication of bankruptcy and exemption under Daejeon District Court Decision 2016Hadan1666, 2016Ma161, and the above court rendered a ruling of bankruptcy against the defendant on September 2, 2016, and decided to grant exemption on October 6 of the same year, and each of the above decisions becomes final and conclusive around that time.
Loans against the Defendant asserted by the Plaintiff constitute a bankruptcy claim as a property claim arising before the Defendant’s declaration of bankruptcy, and thus, the Defendant was exempted from liability for the above loans.
Therefore, the lawsuit of this case is unlawful because there is no benefit in the protection of rights due to the confirmation of the above exemption decision against the defendant.
3. The instant lawsuit is unlawful and thus dismissed.
The judgment of the first instance court is revoked since its conclusion differs, and the lawsuit of this case is dismissed, and it is so decided as per Disposition by applying Article 99 of the Civil Procedure Act to the burden of litigation costs.