[2] Standard for determining whether a claim claim under an attachment and assignment order constitutes individual rehabilitation claims stipulated in the list of creditors of individual rehabilitation procedures

1. The procedure for compulsory execution, provisional seizure or provisional disposition, which is already pending on the property belonging to an individual rehabilitation foundation on the basis of individual rehabilitation claims listed in the list of creditors, was temporarily suspended upon the commencement of individual rehabilitation procedures. If the repayment plan is authorized, such procedure shall lose its effect unless it is otherwise determined in the decision to authorize the repayment plan or the repayment plan. Therefore, if the individual rehabilitation procedure is commenced on the basis of individual rehabilitation claims listed in the list of creditors where the assignment and assignment order issued on the individual rehabilitation foundation is not yet finalized and an immediate appeal is filed on the ground of such cause, the appellate court shall dismiss the application for seizure and assignment order after suspending the judgment on the appeal except in a case where the attachment and assignment order are revoked for any other reason, where the repayment plan is authorized, or where the repayment plan becomes invalidated on the ground that it becomes invalidated (see Supreme Court Order 2007Ma1679, Jan. 31, 2008; Supreme Court Order 2007Ma1284, Dec. 13, 2010).

2. The lower court determined that, in light of the cause and amount, etc. of the claim indicated in the creditor list, the creditor’s individual rehabilitation claim indicated in the creditor list is not identical to that of the claim attachment and assignment order of this case, and thus, the claim attachment and assignment order of this case cannot be revoked or invalidated according to the effect of the decision to commence individual rehabilitation procedures and the decision to authorize the repayment plan of this case, which was applied by the re-appellant.

However, according to the records, the Re-Appellant applied for commencement of individual rehabilitation procedures as Incheon District Court 2012 Ma30162, and received a suspension order on April 30, 2012, and the Re-Appellant decided not to commence individual rehabilitation procedures, but to authorize the repayment plan from the above court. However, in the list of creditors submitted at the time of application for individual rehabilitation, the part of the creditor's individual rehabilitation claims in the list of creditors submitted at the time of application for individual rehabilitation was not revised until the time of authorization of the repayment plan and there was no creditor's objection.

In light of the aforementioned facts in light of the legal principles as seen earlier, the instant order was issued to suspend the attachment and assignment order. If the rehabilitation court decided to authorize the commencement of the rehabilitation procedure and the repayment plan despite the re-appellant’s failure to revise the creditor list, the claims for the instant order for the attachment and assignment order are highly likely to be considered as the creditor’s individual rehabilitation claims indicated in the creditor list of individual rehabilitation procedures (No. 2012da30162). Therefore, the lower court should have deliberated on the following: (a) the progress of issuing the suspension order for the attachment and assignment order for the instant claim; and (b) the progress of the individual rehabilitation case (No. 2012da30162); and (c) whether the promissorysory note claim, which is the claim claim for the attachment and assignment order, may be deemed as included in the individual rehabilitation claims indicated in the creditor list, along with the documents proving the creditor list submitted by the re-appellant’s

Nevertheless, the lower court dismissed the Re-Appellant’s appeal without examining the aforementioned circumstances. In so doing, the lower court erred by misapprehending the legal doctrine on the decision to commence individual rehabilitation procedures and the validity of the decision to authorize repayment plans, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The grounds of reappeal regarding this point are with merit.

3. Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)