2018Ra467 Declaration of Bankruptcy

A

Seoul Rehabilitation Court Order 2017Hadan5473 dated July 26, 2018

April 17, 2020

The decision of the first instance shall be revoked. The case shall be remanded to the first instance court.

1. Facts of recognition;

According to the records, the following facts are recognized:

A. The appellant was declared bankrupt on March 23, 2007 in the Seoul Central District Court Decision 2006Hadan40933, which became final and conclusive on April 13, 2007. The above court rendered a ruling of non-permission of discharge against the appellant in the case of discharge No. 4249, Nov. 27, 2007. The above ruling became final and conclusive on July 1, 2008.

B. On October 26, 2017, the appellant filed an application for bankruptcy and exemption. On July 26, 2018, the first instance court rendered a decision to dismiss the petition for bankruptcy of this case on the grounds that “The petition for bankruptcy of this case constitutes a case where the subsequent petition for bankruptcy was filed for the same reason as the purpose of receiving exemption despite having received a provisional decision not to grant exemption after having been declared bankrupt.”

C. On August 23, 2018, the appellant served the first instance decision and filed an immediate appeal on August 27, 2018.

2. Summary of grounds for appeal;

The appellant asserts that the first instance court's decision dismissing the petition for bankruptcy of this case on the ground that the petitioner filed a petition for bankruptcy of this case on the ground that the petitioner filed a petition for bankruptcy of this case (hereinafter referred to as "the petition for bankruptcy of this case") after the previous declaration of bankruptcy of bankruptcy and a decision not to grant immunity was made after the bankruptcy of this case was declared and 10 years have passed without being convicted of fraudulent bankruptcy of this case under Article 650 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter referred to as "the Debtor Rehabilitation Act").

3. Determination

A. The Supreme Court Decision 201Ma1071 Decided August 16, 201, which rejected the petition for bankruptcy of the Do Do Do Do 2011, held that the so-called "the petition for bankruptcy of the Do 2011-Ma1071, which re-examines the petition for bankruptcy with the "the same cause for exemption or exemption for the same bankruptcy after obtaining the provisional decision not to grant exemption," cannot be permitted.

The Supreme Court's ruling on the petition for bankruptcy of the re-do of this case begins with the decision that rejected the petition for bankruptcy of the re-do of the Do of the Do of this case (Supreme Court Order 2006Ma877 Decided December 21, 2006) (Supreme Court Order 2009Ma1583 Decided November 6, 2009), and the decision that rejected the petition for bankruptcy of the Do of the Do of the Do of this case (Supreme Court Order 201Ma1071 Decided November 6, 2009) (the above decision that rejected the petition for bankruptcy of the Do of this case).

B. Judgment of the Supreme Court of this case

1) There is no provision prohibiting a bankruptcy petition again under the former Debtor Rehabilitation Act. Article 559(2) of the same Act provides that “A debtor, the application for immunity of which is dismissed, may not re-examine the same bankruptcy,” and there is no express provision that a debtor, the application for immunity of which is dismissed, cannot re-examine the application for immunity. The debtor, for whom seven years have not passed since the decision to permit immunity was rendered pursuant to Article 564(1)4 of the same Act, only stipulates that the debtor, for whom seven years have not passed since the decision to permit immunity was rendered, falls under the grounds for non-permission of discharge, and there is no

Article 309(2) of the Debtor Rehabilitation Act provides that "if a petition for bankruptcy is deemed to fall under an abuse of bankruptcy procedures even in cases where there exists a cause for bankruptcy against the debtor, the petition for bankruptcy may be dismissed." However, the Supreme Court of this case declares that the petition for bankruptcy of the debtor is dismissed or rejected in the previous case without requiring a detailed deliberation as to whether the petition for bankruptcy of the same cause constitutes an abuse of bankruptcy procedures," without exception, the petition for bankruptcy of the debtor shall be rejected without exception, and there is no explanation as to the relevant applicable laws and regulations. The lower court, not the laws and regulations, has made a mechanical decision to dismiss the petition for bankruptcy of the re-do on the basis of the Supreme Court ruling of this case.

2) Unlike us, there is room to regard the 'replacement of bankruptcy applications' as 'replacement of application for immunity' as the foreign legislation cases and the U.S. Federal Bankruptcy Code, unlike us, has become unified in bankruptcy procedures and immunity procedures.

However, the U.S. Federal Bankruptcy Act explicitly provides that no petition for bankruptcy or exemption shall be interfered with unless there are special circumstances (Article 349(a)).

However, if the debtor does not comply with the court order in bad faith, or does not appear in the court in the course of the proceeding, ② if the debtor voluntarily withdraws the petition for bankruptcy from the creditor, he/she shall not file a new petition for bankruptcy within 180 days (Article 109 (g)). However, the concept of bad faith is strictly interpreted that it should reach an intentional disregarding over mere intention, and (see re-indicis, 48 B.R. 178 (Bkr. E.D. N. 1985). Even if the withdrawal of the petition for bankruptcy is restricted, it is insufficient that the withdrawal was made after the creditor's revocation request was received at the time, and that there is no causal relation with the creditor's revocation request for the prohibition order, and thus, the scope of relief for the debtor is broad (see, e.g., re-indicis, 2393, 2537.36).54).

(iii) the interest in the protection of rights;

The reason why the Supreme Court’s decision in this case, even though there is no explicit provision on the basis of the Debtor Rehabilitation Act, rejected the petition for bankruptcy, seems to be due to the fact that there was no “interest in protection of rights”. In other words, it is deemed that there was no benefit in the protection of rights to file a petition for bankruptcy again on the same ground of bankruptcy.

Although it is necessary to separate and separate the bankruptcy procedure and the exemption procedure under the Debtor Rehabilitation Act, unlike the former Bankruptcy Act, the two procedures have been mitigated by deeming the application for immunity as simultaneously with the filing of a petition for bankruptcy, barring any special circumstance under Article 556(3) of the Debtor Rehabilitation Act, and the bankruptcy procedure and the exemption procedure are closely related to the debtor’s total assets for all creditors and the remainder of the debt except the dividend amount, which is distributed, under the purpose of enabling the debtor to start a new departure. Thus, the legal interest cannot be viewed as separate.

In the case of an individual debtor, there are more than 200 statutory provisions that cause various grounds for disqualifications under various occupation and status unless the individual debtor is reinstated after having been declared bankrupt. Nevertheless, the reason why an individual debtor voluntarily files a petition for bankruptcy is to receive exemption and reinstatement after having been declared bankrupt.

However, the ruling of the Supreme Court of this case that the debtor, who is at a disadvantage in various occupation and status due to the declaration of bankruptcy, was declared bankrupt but has been dismissed or non-permission of the exemption from the existing debt, is no "interest in protecting rights", and that the decision of the Supreme Court of this case is too form logical.

(iv) the obligor’s practical necessity for relief from claims not permanently extinguished;

The Supreme Court has maintained the legal doctrine that there exists a benefit in a lawsuit for the interruption of extinctive prescription in cases where the ten-year period of extinctive prescription of a claim based on a previous final and conclusive judgment is imminent, and such legal doctrine still remains reasonable at present (see Supreme Court en banc Decision 2018Da22008, Jul. 19, 2018). In the foregoing en banc Decision, if the existence of a claim that is not permanently extinguished by permitting re-instigation of extinctive prescription is recognized, then the Dissenting Opinion pointed out that “In cases where the existence of a claim is recognized by permitting re-instigation of a suit for the interruption of extinctive prescription, the social problem that is more severe to the economically weak who has no ability to repay by putting too much heavy weight of the debt, is also governed by the division of various debt collection institutions, and the Majority Opinion stated that “ insofar as an obligor can escape from the whole or part of a claim by a final and conclusive judgment, allowing the obligee to re-instigation of a suit for the interruption of extinctive prescription is consistent with balance.

In the above en banc decision, compared with the permission of a re-instigation of a suit for the interruption of extinctive prescription to a creditor who has received a final and conclusive judgment in favor of the debtor on the ground that the debtor can escape from all or part of the debt through the bankruptcy or rehabilitation system, it is reasonable to allow the debtor to file a petition for bankruptcy again without any legal basis. Therefore, it is reasonable to allow the debtor to file a petition for bankruptcy again for the debtor who has been declared bankrupt but has not been exempted from immunity.

5) The rehabilitation procedures and individual rehabilitation procedures of the Do are permissible in practice and in balance with the practice of allowing the commencement of rehabilitation procedures and individual rehabilitation procedures, and in the event that an obligor subject to the commencement of rehabilitation procedures and individual rehabilitation procedures in practice has discontinued the subsequent rehabilitation procedures and individual rehabilitation procedures, it is allowed to file an application for commencement of rehabilitation procedures and individual rehabilitation procedures again on the grounds of “the same rehabilitation cause and cause of individual rehabilitation” after the discontinuation decision becomes final and conclusive, and there is no provision prohibiting such application. A debtor who has been declared bankrupt may file a petition for bankruptcy again, and there is no provision prohibiting the application for immunity. Interpretation of the prohibition of filing a petition for bankruptcy only for a debtor who has been dismissed or for whom the application for immunity has been granted is inconsistent with other

6) The lower court’s practical tendency

In light of the above legal and practical problems as seen earlier, and the fact that it is too harsh that the debtor does not have an opportunity to permanently adapt to the Supreme Court's decision, and in particular, it is not permissible to interpret the decision of the Supreme Court in this case as the same bankruptcy cause after the application for immunity was declared bankrupt and the withdrawal of the application for immunity was made again for the same bankruptcy cause. Therefore, even if the debtor, who was declared bankrupt, dismissed the application for immunity or exempted, filed a petition for bankruptcy again, the lower court has a very strict tendency to provide the debtor with an opportunity to new bankruptcy and immunity.

7) Sub-committee

Without any special legal basis, we cannot agree to apply the decision of the Supreme Court of this case, which declared that the exemption has been dismissed or rejected in the previous case without exception, to the mechanical application of the ruling of the Supreme Court of this case. In a case where the debtor again files a petition for bankruptcy, taking into account the period, circumstances, intent, etc. of the petition for bankruptcy, it is sufficient to dismiss the petition for bankruptcy by applying Article 309(2) of the Debtor Rehabilitation Act (if it is deemed that the petition for bankruptcy falls under the abuse of bankruptcy procedure even if the debtor has a cause of bankruptcy, it may be dismissed if the petition for bankruptcy is deemed to fall under the abuse of bankruptcy procedure).

C. Determination on the grounds for appeal

On March 23, 2007, the debtor was reinstated pursuant to Article 574(1)3 of the Debtor Rehabilitation Act after the lapse of 10 years without being convicted of fraudulent bankruptcy after having been declared bankrupt. However, since the debtor bears an excessive obligation on November 27, 2007 and is confirmed by obtaining a provisional decision not to grant immunity, the debtor bears an excessive obligation. As such, there is a benefit in the protection of the right to receive immunity by filing a petition for bankruptcy. Even if the debtor again files a petition for bankruptcy, taking into account the period, circumstances, intention, etc. of again filing a petition for bankruptcy, it is difficult to determine that the petition of bankruptcy of this case constitutes "an abuse of bankruptcy procedure" under Article 309(2) of the Debtor Rehabilitation Act.

Therefore, the decision of the court of first instance that dismissed the petition for bankruptcy of this case by applying the decision of the Supreme Court of this case solely on the ground that the petition for bankruptcy of this case is "the bankruptcy

4. Conclusion

The decision of the first instance is revoked and the case is remanded to the first instance court.

April 17, 2020

The presiding judge, judge and deputy judge;

Judges Lee So-young

Judges Kim Young-young