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(영문) 의정부지방법원고양지원 2016.11.11 2016가단12383

대여금

Text

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

The Plaintiff, while lending money to Nonparty C, had the Defendant repaid the above money until July 22, 2010. The Defendant jointly guaranteed the above C’s debt and was not repaid KRW 41,300,000 among them.

However, the fact that the Defendant applied for bankruptcy and exemption to the Seoul Central District Court on May 20, 2015 and the decision became final and conclusive upon receipt of a decision to grant immunity on October 15, 2015 is deemed to have been led to the Plaintiff’s failure to appear on the date for pleading (Article 150(3) of the Civil Procedure Act). The obligor, who is exempted under the main sentence of Article 566 of the Debtor Rehabilitation and Bankruptcy Act, is exempted from all of the obligations to bankruptcy creditors except dividends under bankruptcy proceedings. Here, the exemption means that the obligor is still in existence, but the obligor cannot be forced to perform his/her obligations. Therefore, when a decision to grant immunity to the obligor of bankruptcy becomes final and conclusive, the exempted claim would lose the ability to institute a lawsuit with ordinary claims (see, e.g., Supreme Court Decision 2015Da28173, Sept. 10, 2015). Therefore, the Plaintiff’s claim against the Defendant was arising due to the cause before the declaration of bankruptcy, and thus, the instant lawsuit is dismissed.