[1] Meaning of “where a request is not bona fide” as a ground for dismissal in a petition for bankruptcy under Article 309(1)5 of the Debtor Rehabilitation and Bankruptcy Act, and whether it is permissible to dismiss the petition for bankruptcy without providing a corrective opportunity for non-performance of an order of correction or for insufficient correction on the ground of non-performance of an order of correction (negative)

[2] The measures to be taken by the appellate court where a debtor fails to comply with the request of the first instance court for correction and received a petition of bankruptcy on the ground that the debtor's failure to comply with the request of the first instance court and responded to the request for correction after receiving a petition of bankruptcy on the ground that the

[1] Article 309(1)5 of the Debtor Rehabilitation and Bankruptcy Act / [2] Articles 309(1)5 and 316 of the Debtor Rehabilitation and Bankruptcy Act

[1] Supreme Court Order 2008Ma1070 dated September 25, 2008 (Gong2008Ha, 1451)

Re-appellant

Gwangju District Court Order 201Ra586, 587 dated January 18, 2012

The order of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of reappeal are examined.

1. "When a request is not bona fide" under Article 309 (1) 5 of the Debtor Rehabilitation and Bankruptcy Act, which provides for the grounds for rejection of a petition for bankruptcy, means where a debtor has omitted the matters to be stated in the application under Article 302 (1) of the Act, or failed to submit the attached documents as stipulated in Article 302 (2) of the Act and Article 72 of the Rules on Debtor Rehabilitation and Bankruptcy; the court has urged the debtor to correct such matters without justifiable grounds; if the matters ordered to correct are concerning which are not legally required, it is not allowed for the debtor to dismiss the petition for bankruptcy on such ground even if the debtor failed to comply with the court's request for correction, even if the debtor fails to comply with the court's request for correction, it is not allowed to dismiss the petition for bankruptcy immediately without complying with the court's request for correction or examination (see, e.g., Supreme Court Order 208Ma10708, Sept. 25, 2008).

2. The court below ordered the re-appellant to revise insurance-related documents as of November 3, 201. However, the re-appellant submitted an application for postponement of the order of correction as of March 4, 201 and did not perform it. The first instance court dismissed the re-appellant's application for bankruptcy and exemption on December 16, 201. The second instance court did not submit the data on the debtor's income, ② the debtor, his spouse, resident registration abstract, taxation certificate by tax item, ③ the details of passbook at which the debtor and his spouse deposit income and living expenses are paid (from January 1, 2010 to then January 1, 201), ④ the debtor, spouse, and children, and did not perform it. The second instance court rejected the re-appellant's application for exemption under the name of the non-party 1's family member on the ground that the non-party 2 did not submit the tax particulars and exemption certificate as of December 16, 2011. The second instance court did not submit the tax particulars and exemption certificate under the name of the non-party 2.

3. However, considering the inherent nature of the appellate trial inasmuch as the re-appellant had complied with the court’s order of correction while filing an immediate appeal after the first instance court’s decision, the lower court should have determined the legitimacy of the reasons for the first instance trial or appeal after providing the re-appellant with an opportunity to correct any further correction or examination, if the corrected contents failed to meet the court’s requirements.

Nevertheless, without taking such measures, the lower court determined that the bankruptcy and application for immunity of the re-appellant constituted bad faith in application, and dismissed the re-appellant’s appeal. In so doing, the lower court erred by misapprehending the legal doctrine on “when the application is not bona fide” and the structure of the appellate trial, thereby omitting deliberation and judgment as to important matters that may affect the judgment.

4. 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 Park Poe-dae (Presiding Justice)