면책확인
The instant lawsuit is dismissed.
Litigation costs shall be borne by the plaintiff.
1. Judgment on the lawfulness of the lawsuit
A. Notwithstanding the determination of grant of immunity to a bankrupt debtor, where a claim is disputed as to which claim constitutes non-exempt claim, the debtor may, by filing a lawsuit seeking confirmation of grant of immunity, eliminate the risks existing in his/her rights or legal status.
However, in relation to the creditor who has executive title with respect to the exempted obligation, the debtor's filing of a lawsuit of demurrer against the claim and seeking the exclusion of enforcement force based on the effect of the discharge becomes an effective and appropriate means to eliminate the present danger in the legal status
Therefore, even in such cases, seeking the confirmation of immunity is unlawful because it is not a final resolution of dispute, and there is no benefit of confirmation.
(Supreme Court Decision 2017Da17771 Decided October 12, 2017). B.
Judgment
The defendant filed a lawsuit against the plaintiff for the payment of the lease fee of KRW 10,366,92 (i.e., lease fee of KRW 6,746,326, and penalty of KRW 1,909,718) and damages for delay from the next day of the delivery of the copy of the complaint as to the lease fee of KRW 8,656,04,00 among the lease fee of KRW 6,746,326) and the damages for delay from the next day of the delivery of the copy of the complaint as to the lease fee of KRW 1,710,718, and the decision on performance recommendation was made by the above court on April 11, 2018, and the above decision on performance recommendation was finalized on June 2, 2018.
According to the above legal principles, insofar as the Plaintiff did not go through other remedial procedures, such as filing a lawsuit of demurrer against the above decision of performance recommendation, it cannot exclude the executory power of the final decision of performance recommendation, and the risk of compulsory execution from the Defendant is not still removed.
Therefore, the instant lawsuit cannot be an effective and appropriate means to eliminate the Plaintiff’s legal uncertainty, and thus, the benefit of confirmation is more.