[채권압류및전부명령][공2009하,1961]
Where an individual rehabilitation procedure commences for a debtor under the condition that a seizure and assignment order issued on a claim that belongs to an individual rehabilitation estate has not yet become final and conclusive, and an immediate appeal is filed against a seizure and assignment order on such ground, whether the measure to be taken by the appellate court and the individual rehabilitation procedure for which the first application was filed was discontinued, but the same applies to cases where the individual rehabilitation procedure newly filed by the debtor is re-established in the course of
The procedure for compulsory execution, provisional seizure or provisional disposition that has already been in progress for assets belonging to the individual rehabilitation foundation on the basis of individual rehabilitation claims listed in the list of creditors was temporarily suspended upon commencement of individual rehabilitation procedures. However, if the repayment plan is approved, unless it is otherwise determined in the decision to authorize the repayment plan or the repayment plan. Therefore, in a situation where the individual rehabilitation procedure that belongs to the individual rehabilitation foundation is not yet finalized on the basis of individual rehabilitation claims listed in the list of creditors, if the individual rehabilitation procedure is commenced for the debtor and an immediate appeal is filed against the above seizure and assignment order on the ground of such commencement, 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 is revoked for any other reason, but the repayment plan is authorized, on the ground that the effect of the seizure and assignment order becomes null and void. In addition, even if the individual rehabilitation procedure for which an application was filed at the beginning is abolished on the ground that the debtor’s application for withdrawal of the individual rehabilitation procedure in the process of the appeal on such seizure and assignment order, if the appeal is again filed until the commencement of the appeal.
Articles 600(1) and 615(3) of the Debtor Rehabilitation and Bankruptcy Act, Article 229(7) and (8) of the Civil Execution Act
[Plaintiff-Appellee] 2007Ma1679 dated January 31, 2008 (Gong2008Sang, 280)
Creditors Corporation
The debtor
3. 3 others
Subu District Court Order 2009Ra141 dated June 30, 2009
The order of the court below shall be reversed, and the case shall be remanded to the Panel Division of Suwon District Court.
The grounds of reappeal are examined.
The procedure of compulsory execution, provisional attachment or provisional disposition that has already been in progress for assets belonging to individual rehabilitation estate on the basis of individual rehabilitation claims listed in the list of creditors was temporarily suspended upon commencement of individual rehabilitation procedures. However, if the repayment plan is authorized, unless otherwise determined in the decision to authorize the repayment plan or the repayment plan. Therefore, in a situation where the attachment or assignment order that is issued on the basis of individual rehabilitation claims listed in the list of creditors is not yet finalized, the individual rehabilitation procedure for the debtor is commenced and an immediate appeal is filed against the above seizure or assignment order on the ground that it is not yet finalized, the appellate court shall revoke the attachment and assignment order and dismiss the application where the decision on the appeal is suspended, except in a case where the attachment and assignment order is revoked for other reasons, but the repayment plan is authorized, on the ground that the effectiveness of the attachment and assignment order becomes null and void (see Supreme Court Order 2007Ma1679, Jan. 31, 2008). Moreover, even if an individual rehabilitation procedure applied in the first instance files an application for the discontinuation of the individual rehabilitation procedure and the assignment order, the rehabilitation order newly commenced.
According to the reasoning of the order of the court below, the court below dismissed the appeal by the Re-Appellant on the ground that the Re-Appellant filed an application for individual rehabilitation on March 6, 2009 with the Government District Court 2009Da4744 on March 30, 2009 and received the commencement order of the individual rehabilitation procedure from the above court on March 30, 2009, but there was no evidence to acknowledge that the above court received the authorization order of the repayment plan from the above court. Rather, upon the Re-Appellant filed a withdrawal order of the individual rehabilitation procedure on May 22, 2009, the above court decided to discontinue the individual rehabilitation procedure on May 22, 2009. Since the Re-Appellant was confirmed as the termination order of the individual rehabilitation procedure and the repayment plan became final and conclusive at that time, and there was no effect on the validity of the seizure and assignment order of this case, and there was no other circumstances to cancel the seizure and assignment order of this case.
However, according to the records, the re-appellant submitted a withdrawal of the application for individual rehabilitation on May 22, 2009, 2009, 4744, but on the same day, he/she again submitted an application for individual rehabilitation to the above court No. 2009, 11018, and submitted a new application for individual rehabilitation on May 28, 2009.
In light of the aforementioned legal principles, the lower court should have dismissed the application for attachment and assignment order after suspending the judgment on the instant appeal, if the claim for the attachment and assignment order of the instant case is individual rehabilitation claims listed in the list of creditors of individual rehabilitation procedures No. 11018, 2009, 11018.
Nevertheless, the lower court dismissed the Re-Appellant’s appeal on June 30, 2009 solely on the ground that the individual rehabilitation procedure (2009da47444) was abolished without examining the above circumstances. In so doing, the lower court erred by misapprehending the legal principles on the decision to commence individual rehabilitation procedures and the validity of the decision to authorize the repayment plan, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The grounds for reappeal on this point are with merit.
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 Si-hwan (Presiding Justice)