[사해행위취소][공2008하,1069]
Whether it is permissible for a debtor to exercise his/her right of revocation with a bankruptcy claim as a preserved claim where immunity is granted in bankruptcy proceedings (negative in principle)
The obligee's right of revocation is a system to preserve the obligor's responsible property, and it should be premised that the obligor can exercise the obligee's right of revocation against the obligor. If the obligor is granted immunity in bankruptcy proceedings, the obligee's right of revocation is not allowed unless the obligor's right of revocation falls under the exception of the proviso of Article 566 of the Debtor Rehabilitation and Bankruptcy Act.
Article 406(1) of the Civil Act, Article 566 of the Debtor Rehabilitation and Bankruptcy Act
(Attorney Han-young, Counsel for defendant-appellee)
Defendant (Attorney Kim Jong-l et al., Counsel for the defendant-appellant)
Seoul Northern District Court Decision 2007Na5043 Decided March 19, 2008
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
The obligee's right of revocation is a system to preserve the obligor's responsible property, and it should be premised on the fact that the obligor can exercise his/her claim against the obligor. The main text of Article 566 of the Debtor Rehabilitation and Bankruptcy Act provides that "the obligor who has been exempted shall be exempted from all the obligations to the bankruptcy creditors except dividends arising from bankruptcy proceedings." However, since there are exceptional provisions that the obligor shall not be exempted from his/her liability only for certain obligations specified in the proviso, if the obligor receives immunity in the bankruptcy proceedings, exercising the obligee's right of revocation with the obligor's claim as the preserved claim is not allowed unless the obligor's claim does not fall under the grounds for exception
In the same purport, the court below is just in holding that the plaintiff's claim for the reimbursement which is the object of exemption cannot be exercised as the preserved claim, and there is no error in the misapprehension of legal principles as to the exercise of the obligee's right of revocation and the effect of immunity as otherwise alleged in the ground of
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Hyun-chul (Presiding Justice)