대여금
1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. The plaintiff asserted that the plaintiff filed the lawsuit of this case seeking the performance of the obligation under the above judgment for the purpose of the extension of prescription, since he did not receive repayment from the defendant even after ten years have passed since the judgment was rendered, the plaintiff ordered the defendant to pay 41 million won and damages for delay.
2. We examine the legitimacy of the instant lawsuit ex officio on the legitimacy of the instant lawsuit.
The main text of Article 566 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”) provides that an obligor who has been exempted from liability is exempted from all liability for all obligations owed to any bankruptcy creditor, except distribution under the bankruptcy procedures.
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 entitled to immunity shall lose the ability to file a lawsuit that has ordinary claims (see, e.g., Supreme Court Decision 2015Da28173, Sept. 10, 2015). Furthermore, Articles 423 and 566 of the Debtor Rehabilitation Act provides that even if a bankruptcy claim is not entered in the list of creditors of the application to grant immunity, the effect of immunity shall be exempted unless it falls under any subparagraph of the proviso of Article 566 of the same Act (see, e.g., Supreme Court Decision 2010Da3353, May 13, 2010). Meanwhile, “a claim that is not entered in the list of creditors in bad faith” under Article 566 subparag. 7 of the Debtor Rehabilitation Act refers to a case where a debtor was aware of the existence of an obligation against a bankruptcy creditor prior to the decision to grant immunity, and thus, if the debtor was unaware of the existence of an obligation, it does not constitute non-exempt claim.
Supreme Court Decision 2005Da76500 Decided January 11, 2007