[2] The case reversing the order of the court below that dismissed an appeal based on the circumstances of the first instance court without considering documents and materials submitted by the appellant before the date of examination at the appellate court on the decision to dismiss the application for commencement of individual rehabilitation procedure

Article 33 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Act”) provides that the provisions of the Civil Procedure Act shall apply mutatis mutandis to individual rehabilitation procedures unless otherwise provided for in the above Act, and as long as the civil appellate court applied mutatis mutandis to the litigation procedures by the appellate court pursuant to Article 443 of the Civil Procedure Act takes a prompt appellate trial, the appellate court’s decision on the dismissal of application for commencement of individual rehabilitation procedures shall be determined by the first instance court’s decision or the appellate court’s decision on the basis of the facts and materials submitted by the time of notification of the decision, in the absence of examination (see Supreme Court Order 2010Ma539, Jul. 30, 2010).

According to the reasoning of the order of the court below, the court below dismissed the re-appellant's appeal on June 18, 2009 on the ground that the re-appellant's debt for which the application for commencement of individual rehabilitation procedure was filed on the ground that it occurred within one year as of the date of application, and the reason why the re-appellant did not clearly state the reason why the debtor bears the debt, and that the creditor did not respond to it in the first instance trial despite the non-performance of any reply.

However, in light of the above legal principles and the process of the trial of this case, the re-appellant has come to the court below and submitted a document explaining his fraud prior to the date of the trial, and the reason for his fraud was clearly explained, and also submitted to the defendant for confirmation of the fact of the accident under the name of the chief of Mapo-gu Police Station which contained the contents of the complaint against the perpetrator. Thus, the court below should have judged whether the ground for appeal was proper and the commencement of rehabilitation procedures based on the above documents and materials submitted by the re-appellant, considering the nature of the appeal deliberation, which is the core nature of the court below. Nevertheless, the court below dismissed the appeal on the ground that the application of this case was not bona fide, without considering the documents and materials submitted by the court of appeal at the court of first instance, based only on the circumstances up to the court of first instance.

Therefore, without further proceeding to decide on the remaining grounds of reappeal, 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 Kim Nung-hwan (Presiding Justice)