1. “Claims that are not entered in the list of creditors in bad faith” under Article 566 subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act refers to cases where an obligor, despite being aware of the existence of an obligation to a bankrupt creditor prior to immunity, is not entered in the list of creditors. Thus, if an obligor was unaware of the existence of an obligation, even if he was negligent in not knowing the existence of the obligation, it does not constitute non-exempt claims under the above provisions of the same Act, but if the obligor was negligent in not aware of the existence of the obligation, it constitutes a non-exempt claim under the above provisions of the same Act even if he/she did not enter it in the list of creditors by negligence. The grounds for excluding a claim that is not entered in the list of creditors are subject to immunity. If a creditor is not entered in the list of creditors, the obligee would be deprived of the opportunity to raise an objection to the application for immunity within the scope of immunity procedure, and accordingly, the obligor would not be held liable for the obligor’s performance without any objective verification of the cause for non-permission as prescribed in Article 564 of the Act.

2. According to the reasoning of the first instance judgment cited by the lower court, the lower court determined that the Plaintiff’s claim against the Defendant constitutes non-exempt claim as stipulated in the above provision of the law, on the ground that, in full view of the evidence in its judgment, the Defendant was aware of the existence of the instant obligation against the Defendant’s Agricultural Cooperatives Federation (hereinafter “CF”) prior to the decision to grant immunity, but the Defendant could have found the existence of the instant obligation

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following facts.

① On June 29, 2000, the National Agricultural Cooperative Federation loaned KRW 100 million to B Co., Ltd. (hereinafter referred to as “B”), and the Defendant, the representative director of B, guaranteed the above loan obligations on the same day.

② Since then, the Korea Technology Credit Guarantee Fund subrogated to KRW 80 million out of the above loans, and the National Agricultural Cooperative Federation received a favorable judgment on April 26, 2005 by filing a lawsuit against B and the Defendant seeking payment of the remaining loans and the interest and delay damages, and the said judgment became final and conclusive around that time. The Defendant stated in the said lawsuit that the total amount of obligations B and the Defendant reaches KRW 1.5 billion.

(3) After the commencement of the voluntary auction procedure for B-owned real estate at the request of the Korea Technology Finance Corporation, the sale and distribution procedure has been completed around 2006, and the NAF seems to have participated in the voluntary auction procedure as a person holding provisional seizure for the said real estate

④ The notice of the date of sale and the date of decision on sale on May 25, 2006, which was notified to the Defendant, who is the representative director B in the above voluntary auction procedure, was written at least KRW 1.3 billion out of the minimum sale price of the said real estate at the fourth sale date.

⑤ Meanwhile, there is no evidence or material from which the Nonghyup Federation notified the Defendant of the performance of the instant obligation or found the circumstances leading to the collection of the instant obligation following the said voluntary auction procedure. There is no evidence or material from which the remaining land owned by the NA was sold by the public auction procedure around February 2008, and the NAF appears to have not participated in the procedure of provisional attachment or public auction regarding the said land. Moreover, there is no evidence to deem that the Defendant was aware of the existence of the obligation, such as the repayment of the instant obligation even if part of the instant obligation, etc. was performed.

(6) On April 6, 2010, the Defendant filed an application for bankruptcy or exemption and received immunity on April 1, 2010. At the time, the Defendant did not enter the instant debt amounting to approximately KRW 32 million as of March 31, 2010 in the list of creditors. However, there is no evidence to deem that there is a ground to deny exemption.

7) The defendant argued that the property owned by himself is almost rarely old, and that the debt of this case was extinguished due to the repayment of the debt or that the NAF would have renounced the debt collection through the voluntary auction procedure from the first instance court of this case consistently.

8. The Plaintiff’s assertion that the instant lawsuit was instituted for the interruption of extinctive prescription.

B. Examining these circumstances in light of the legal principles as seen earlier, given the obligor’s explanation as to the process of omission and whether it conforms to objective data, the possibility that the Defendant might have been mistakenly aware that the instant obligation was extinguished due to the Defendant’s repayment through voluntary auction procedure or waiver of the collection of physical rights by the NAF at the time of preparing the creditor list cannot be ruled out. Therefore, it is difficult to find that the Defendant was aware of the existence of the instant obligation. Nevertheless, the lower court determined otherwise solely on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on Article 566 subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee