대여금
1. Revocation of a judgment of the first instance;
2. The instant lawsuit shall be dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
1. The plaintiff asserted by the parties, on October 30, 2003, sought payment of the principal and interest on the above loan to the defendant on the ground that he lent the amount of KRW 20 million to the defendant on November 30, 2003 after setting the due date.
On May 30, 2019, the defendant asserts that he is not responsible for the repayment of the above debt on the ground that he was declared bankrupt and exempted from immunity.
2. The main text of Article 566 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”) provides that an obligor who has been indemnified is exempted from all obligations owed to any bankruptcy creditor, except distribution under the bankruptcy procedure.
The exemption here means that the obligation itself continues to exist, but it is not possible to enforce the performance to the bankrupt debtor.
Therefore, when a decision to grant immunity to a bankrupt debtor becomes final and conclusive, a claim that has been granted immunity shall lose the ability to file a lawsuit with ordinary claims (see Supreme Court Decision 2015Da28173, Sept. 10, 2015). In full view of the written evidence Nos. 3 and No. 4, the Defendant filed an application for bankruptcy and immunity with Suwon District Court Decision 2018Hadan10999, 2018, 100999, and at the same time, entered the Plaintiff’s claim in the list of creditors at that time, and the same court rendered a decision to grant immunity to the Defendant on December 3, 2018, and then recognized the fact that the said decision to grant immunity became final and conclusive around that time.
Accordingly, the defendant's liability for the principal and interest of the loan to the plaintiff was exempted, and since the plaintiff's credit against the defendant was lost the ability to file a lawsuit, the plaintiff's lawsuit against the defendant is unlawful.
3. As such, the instant lawsuit is unlawful and thus dismissed.
The judgment of the first instance court is unfair with different conclusions, and it is so revoked, and it is so decided as per Disposition by the decision to dismiss the lawsuit of this case.