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(영문) 서울서부지방법원 2018.05.29 2018가단2113

면책확인

Text

1. The instant lawsuit shall be dismissed.

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

Reasons

1. Facts of recognition;

A. The claim for the principal and interest of the Bank against the Plaintiff was subsequently transferred to the Defendant through a successive transfer. On October 26, 2016, the sum of the principal and interest of the Defendant’s claim for the acquisition of the loan (hereinafter “claim for the acquisition of loan”) is KRW 48,291,807.

B. Around 2016, the Defendant filed an application against the Plaintiff for a payment order seeking the payment of the acquisition amount as Seoul Western District Court 2016 tea880.

The above court issued a payment order on November 9, 2016, and served on the Plaintiff on November 12, 2016, and the payment order was finalized on November 29, 2016.

C. In around 2017, the Plaintiff filed bankruptcy and application for immunity with the Daejeon District Court (the above court 2017, 228, 2017Hadan228), and the above court rendered a decision to grant immunity on August 10, 2017, and the decision to grant immunity became final and conclusive on August 25, 2018.

At the time of filing an application for bankruptcy and immunity, the Plaintiff omitted the Defendant’s statement on the above claim.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 3, the purport of the whole pleadings

2. We examine, ex officio, whether the instant lawsuit is lawful or not, ex officio, as to the determination on the legitimacy of the instant lawsuit.

In a lawsuit for confirmation, there must be a benefit of confirmation as a requirement for the protection of rights, and the benefit of confirmation is recognized only when it is the most effective and appropriate means to obtain a judgment against the defendant to eliminate such apprehension or danger in the plaintiff's rights or legal status.

In addition, in spite of the confirmation of immunity for the debtor in bankruptcy, where a claim is disputed as to which claim is non-exemptable claims, the debtor can remove the existing apprehension and danger in his/her right or legal status by filing a lawsuit seeking confirmation of immunity.

However, in relation to the creditor who has executive titles for the obligation which has been discharged, the debtor shall file a lawsuit of objection to the claim and set the deadline for the discharge.