Method of determining whether an individual debtor, who is in excess of his/her liability, is in insolvency status that is the cause of bankruptcy

Article 305(1) of the Debtor Rehabilitation and Bankruptcy Act

Supreme Court Order 99Ma2084 Dated August 16, 1999 (Gong1999Ha, 2156) Supreme Court Order 2008Ma1904, 1905 Dated May 28, 2009 (Gong2009Ha, 1007) Supreme Court Order 2009Ma1205, 1206 Dated September 11, 2009

Re-appellant

Subu District Court Order 2008Ra263 dated May 7, 2010

The order of the court below shall be reversed, and the case shall be remanded to the Panel Division of Suwon District Court.

The grounds of reappeal are examined.

1. Article 305(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “the Act”) provides that “if a debtor is unable to pay, the court shall, upon application, declare bankruptcy by its ruling.” In this context, the term “if the debtor is unable to pay” means “when the debtor is unable to pay,” that means an objective condition in which the debtor is unable to pay his/her debts generally and continuously due to lack of ability to repay (see Supreme Court Order 9Ma2084 delivered on August 16, 199).

Meanwhile, in order to determine whether a debtor is an individual, even if his/her liabilities exceed his/her current assets are more than his/her current assets, it is necessary to calculate the future income that can be specifically obtained by the debtor in consideration of the debtor's age, occupation and career, qualifications, skills, labor ability, etc., and then calculates the future income by deducting the living expenses that the debtor has to pay from such future income, etc., and then, it is necessary to evaluate that the debtor is in an objective state where the debtor can continuously repay most of his/her obligations with his/her assets and available income. As can be seen, without going through a specific and objective evaluation process on the debtor's ability to repay debts in excess of his/her liabilities, it cannot be concluded that the debtor is not in the state of insolvency without permission on the basis of the abstract and subjective circumstances such as the debtor's age, occupation and career, qualifications, or ability to pay some debts (see Supreme Court Order 2009Ma1205, Sept. 11, 2009).

2. 원심결정 이유에 의하면, 원심은, ① 재항고인은 신청외 1과 1993. 4. 8. 혼인신고를 하여 슬하에 두 자녀를 두고 혼인생활을 영위하고 있던 중 주택구입자금과 생활비 명목으로 사용한 대출금 채무 및 신용카드대금 채무가 합계 30,066,190원에 이르러 지급불능 상태가 되었다고 주장하면서 2008. 1. 9. 이 사건 파산신청을 한 사실, ② 재항고인은 파산신청이 기각된 제1심결정이 있은 후 2008. 12. 4. 신청외 1과 협의이혼신고를 한 사실, ③ 신청외 1은 재항고인과 혼인관계가 계속 중이던 2001. 4. 2. 인천 부평구 청천동 397 동양아파트 (동호수 1 생략)(이하 ‘동양아파트’라고 한다)를 매수하였다가 2007. 10. 2. 이를 매도한 사실, ④ 재항고인은 2007. 11. 8.부터 의정부시 호원동 376-7 호원가든3차아파트 (동호수 2 생략)(이하 ‘호원가든3차아파트’라고 한다)에서 신청외 1 및 두 자녀와 함께 거주하였는데, 위 아파트에 관하여 신청외 1이 재직하고 있던 신청외 2 주식회사 명의로 전세금 8,500만 원의 전세권이 설정되어 있었던 사실, ⑤ 재항고인은 신청외 1과 이혼 후 2009. 3. 31. 현재의 거주지인 의정부시 호원동 461 신일유토빌플러스아파트 (동호수 3 생략)로 전입신고를 마친 사실, ⑥ 한편 재항고인은 파산신청서에는 신청외 1의 수입이 월 1,624,710원이라고 기재하였으나, 제1심에서 제출한 2008. 7. 3.자 보정서에 첨부한 소득세원천징수증명서에 의하면 신청외 1의 급여액이 월 325만 원으로 기재되어 있는 사실이 소명된다고 판시한 다음, 위 소명사실 및 기록에 의하여 추론되는 다음과 같은 사정, 즉 ① 재항고인의 주장에 의하더라도 주택구입자금과 생활비 용도로 재항고인 명의의 채무를 부담하게 된 것이므로, 그 주장의 채무는 부부이던 재항고인과 신청외 1이 공동으로 부담하여야 할 성질의 것인 점, ② 신청외 1은 월 325만 원의 수입이 있었고, 재항고인도 혼인생활 중에 학습지 배달 업무에 종사하는 등으로 소득활동을 해 왔다고 하면서도 재항고인은 위 호원가든3차아파트의 전세금 8,500만 원의 자금 흐름과 관련된 금융자료를 제출하라는 제1심법원의 보정명령에 응하지 아니한 점, ③ 재항고인이 신청외 1과 별거하였다고 주장하는 2009. 3. 31. 후에도 재항고인이 사용하는 통장 계좌에서 신청외 1 명의로 부과된 통신요금, 도시가스요금, 자녀의 급식비 및 학교운영지원비 등이 지출되고 있고, 신청외 1로부터 소액이 입금된 내역도 있는 반면, 재항고인이 신청외 1에게 매월 10일 지급하기로 한 양육비 20만 원이 송금된 내역은 찾을 수 없어, 재항고인이 신청외 1과 사실상으로도 별거하였다고 선뜻 믿기 어려울 뿐만 아니라 나아가 부부공동생활체가 완전히 와해된 것으로 보기 어려운 점, ④ 재항고인은 1970년생의 여자로 노동능력을 가지고 있고, 고등학교 졸업의 학력을 가지고 있으며, 현재도 삼성홈플러스에서 아르바이트 등을 통한 적극적 수입활동을 하고 있는 점 등 재항고인의 연령·직업 및 경력, 채무의 발생경위, 부채의 규모 등을 종합적으로 고려하여 보면, 재항고인이 제출한 자료만으로는 재항고인이 그 채무를 일반적·계속적으로 변제할 수 없는 객관적 상태에 있다고 인정하기 어렵다고 판단하여, 재항고인의 파산신청을 기각한 제1심결정을 그대로 유지하였다.

3. However, we cannot agree with the above judgment of the court below.

A. First of all, the court below determined that the Re-Appellant was unable to vindicate the cause of bankruptcy due to the circumstances such as the age, occupation, and career of the Re-Appellant, including the fact that the Re-Appellant was aged young and is currently engaged in import activities. However, according to the records, the court below did not examine the Re-Appellant's specific amount of future income in the future, whether the Re-Appellant, who is a debtor, can earn future income, whether he/she should pay a certain amount of living cost to maintain his/her livelihood, and the amount of available income used as a repayment resource. Accordingly, it did not examine the Re-Appellant's specific and objective amount of available income.

Examining the above circumstances in light of the above legal principles, it cannot be concluded that the re-appellant is not in insolvency due to abstract and subjective circumstances, such as the fact that the re-appellant is young and has labor ability and is currently engaged in import activities, without going through specific and objective evaluations on future income, living cost, and scale of household income.

B. Furthermore, the court below examined the Re-Appellant's other circumstances cited as the ground that the Re-Appellant does not have any cause of bankruptcy.

(1) The court below held that the Re-Appellant bears the obligation under the name of the Re-Appellant for the purpose of housing purchase fund and living expenses, etc., and therefore, it is difficult for the Re-Appellant and the non-Appellant No. 1 to view that the debt is in insolvency status on the ground that the debt is in the nature that the Re-Appellant and the non-Appellant No. 1 jointly bear. However, even if the debt owed by the Re-Appellant and the non-Appellant No. 1 jointly bears the obligation due to the formation of joint property of the married couple in the internal relationship between the Re-Appellant and the non-Appellant No. 1, it is not possible for the Re-Appellant to oppose the obligee for such reason. Furthermore, according to the records, the non-Appellant No. 1 bears the obligation exceeding 30 million won (Records No. 69, etc.) and there is no evidence to view that the non-Appellant No. 1 had the ability to perform the obligation sufficient to pay.

(2) The court below held that the non-applicant 1 was the revenue of KRW 3.25 million per month, and the re-appellant was engaged in income activities by engaging in the business of delivering learning paper while married, but the re-appellant did not comply with the order of the court of first instance to submit financial data related to the cash flow of KRW 85 million of deposit money for the third apartment house regardless of the above Howon or the third apartment house, and the re-appellant does not seem to be in the status of insolvency.

However, according to the records, non-applicant 1's wages amounted to 3.2.5 million won per month in the income tax withholding certificate (record No. 72) of non-applicant 1, the non-applicant 1's wages amounted to 3.2 million won per month. However, non-applicant 1's wages amount actually received from the company were deducted due to the repayment of funds borrowed from the above company, etc. (record No. 23, 73, 78-80, etc.). Meanwhile, according to the correction submitted by the non-applicant 1 from the first instance court to July 3, 2008, the non-applicant 3 apartment is leased to the company and supported by the above company in consideration of the situation that the non-applicant 1's family members are difficult, the non-applicant 1 and the non-applicant 1 and the non-appellant 3 apartment 1 and the non-appellant 1 and the non-appellant 1 and the non-appellant 1 and the non-appellant 1 and the non-appellant 1 and the non-appellant 1 and the non-party 31 and the non-party 1 and the non-party 1 and the non-party 1.3.

Therefore, it is obvious that the re-appellant cannot be deemed to have failed to comply with the order of the first instance court's correction, so the lower court erred in determining that the re-appellant was not in the insolvency status for the above reasons.

(3) On March 31, 2009, the court below cited the grounds that the Re-Appellant's payment of communication charges imposed in the name of non-applicant 1 in the account used by the Re-Appellant after the Re-Appellant's non-applicant's non-applicant 1, and the amount of money deposited from the non-applicant 1 was not found. However, it is hard to believe that the Re-Appellant's payment of child support 200,000 won was transferred to non-applicant 1, and it is difficult to view that the non-applicant was actually separated from the non-applicant 1, and that it is difficult for the Re-Appellant to view that the body of the married couple's common life was completely damaged.

According to the records, it is difficult to conclude that the Re-Appellant and the non-applicant 1's communal living body did not go against the re-Appellant and the non-applicant 1's co-living body for children's meal expenses, etc., and the small amount of money was deposited several times from the non-applicant 1. However, the Re-Appellant appears to live in the non-applicant 1 and the non-applicant 1 after the divorce, and it appears that the non-applicant is living in the non-applicant 1 and the non-applicant 1's living in the non-applicant 1's above monthly income and living in the non-applicant 1, etc., and it is clear that the non-applicant and the non-applicant 1's co-living body did not go against the non-applicant and the non-applicant 1's co-living body for children's meal expenses, etc., in light of the above circumstances, there is no evidence to deem the non-applicant 1's ability to fully settle the marriage relation.

C. Ultimately, the circumstances cited by the court below appear to be difficult to readily conclude that the re-appellant is not in the status of insolvency. Accordingly, as seen above, the court below erred by misapprehending the legal principles on the cause of bankruptcy stipulated in Article 305(1) of the Act in the judgment below holding that the re-appellant is not in the status of insolvency without going through a specific and objective evaluation on the future income, living cost, and scale of available income.

4. Conclusion

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)