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(영문) 전주지방법원 2017.10.25 2017나2093

대여금

Text

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. The parties' assertion

A. On August 16, 2012, the Plaintiff asserted that the Plaintiff lent KRW 10,000,000 to C as of January 15, 2013 (hereinafter “instant loan”), and the Defendant and D jointly and severally guaranteed the loan.

Therefore, the defendant is obligated to pay to the plaintiff KRW 10,000,000 and damages for delay.

B. The Defendant asserted that the Defendant had discussed between the Plaintiff and the Plaintiff to provide joint and several sureties as alleged by the Plaintiff, but the Plaintiff withdrawn his intention to provide a joint and several sureties on the wind demanding physical guarantee other than a joint and several sureties, and the instant loan was made regardless of the Defendant.

In addition, regardless of whether the plaintiff's assertion is admitted, the defendant is declared bankrupt and granted immunity, so the plaintiff cannot compel the defendant to perform his/her obligation.

2. Prior to determining the legitimacy of the Plaintiff’s claim for determination as to the legitimacy of the instant lawsuit, we examine whether the instant lawsuit is lawful.

A. Article 423 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “the Act”) provides that “A debtor shall be entitled to any property claim arising from a cause that occurred before the declaration of bankruptcy is declared bankrupt,” and Article 566 of the Act provides that “a debtor granted immunity shall be exempted from all of his/her obligations to bankruptcy creditors except for dividends arising from bankruptcy procedures: Provided, That a debtor granted immunity shall not be exempt from all of his/her obligations with respect to any of the following claims.” Thus, even if a bankruptcy claim is not entered in the list of creditors of the application for immunity, it shall be exempted from the effect of immunity unless it falls under any of the subparagraphs of Article 566 of the Act (see Supreme Court Decision 2010Da3353, May 13, 2010). In addition, the term “Immunity” in this context means that a debtor is not able to enforce the performance of his/her obligations to the bankruptcy debtor, even if he

Therefore, the decision to exempt the bankrupt debtor becomes final and conclusive.