In a case where an immediate appeal is filed against a decision to authorize a change in the repayment plan in the individual rehabilitation procedure and a decision to grant immunity has become final and conclusive during the appellate trial or reappeal trial, whether there is a benefit of dissatisfaction with an immediate appeal or reappeal (negative

Even if an immediate appeal is filed against a decision to authorize a repayment plan in the individual rehabilitation procedure, and the immunity decision becomes final and conclusive even if the appeal court or reappeal is pending in the appellate court or reappeal, the appellant or re-appellant is no longer entitled to appeal against a decision to authorize a change in the repayment plan, and such immediate appeal or reappeal is unlawful. The reasons are as follows.

① An immediate appeal filed against a decision to authorize a repayment plan has no effect of suspending the execution of the repayment plan unless the appellate court or the court with pending rehabilitation proceedings suspend, in whole or in part, the implementation of the repayment plan because it does not affect the implementation of the repayment plan (Articles 618(2) and 247(3) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”). This is also the same in the decision to authorize a change of the repayment plan. Therefore, even if an immediate appeal is filed against a decision to authorize a repayment plan and the debtor completes repayment according to the changed repayment plan even if the appellate court or the reappeal is pending, the court shall grant a decision to grant a immunity and the individual rehabilitation procedure is terminated when the decision to grant a immunity becomes final and conclusive (Article 624(1) of the Debtor Rehabilitation and Bankruptcy Act; Article 96 of the Debtor Rehabilitation and Bankruptcy Act).

② The main text of Article 625(2) of the Debtor Rehabilitation Act provides, “The exempted debtor is exempt from liability for the obligations of individual rehabilitation creditors, excluding the repayment performed according to the repayment plan.” Here, immunity refers to the existence of an obligation itself, but it is impossible to enforce the performance to the debtor. Therefore, the exempted individual rehabilitation claims lose the capacity of filing a lawsuit that ordinarily has claims.

③ Under rehabilitation procedures under Article 2 of the Debtor Rehabilitation Act, any change in rights of rehabilitation creditors, etc. takes effect at the time a rehabilitation plan is approved, and all or some of the obligations are exempted, extension of time limits, and extinguishment of rights (see Article 252(1) of the Debtor Rehabilitation Act). However, in the individual rehabilitation procedures under Chapter 4 of the Debtor Rehabilitation Act, the rights of individual rehabilitation creditors are not changed due to a decision to authorize the repayment plan, but are only exempted from the responsibility to grant immunity (see Article 615(1) of the Debtor Rehabilitation Act). Therefore, even if an immediate appeal or re-appeal against a decision to authorize the repayment plan in the individual rehabilitation procedures is pending, if the individual rehabilitation procedures are terminated as a final decision to grant authorization for the change in the repayment plan becomes final and conclusive, there is no possibility that the appellant’s right may be recovered even if the decision to grant authorization for the change in the repayment plan remains in a natural relationship with the debtor. Moreover, even if the repayment plan is re-determined, the appellant may not compel the repayment of obligations to the debtor and may not be specifically determined.

Articles 247(3) and (7), 252(1), 615(1), 618, 619, 624(1), and 625(2) of the Debtor Rehabilitation and Bankruptcy Act; Article 96 of the Debtor Rehabilitation and Bankruptcy Act; Article 248 of the Civil Procedure Act / [Institution of Lawsuit] and Article 442 of the same Act

A&D Partnership Loan Co., Ltd.

Seoul Congress Order 2018Ra100191 dated September 13, 2018

The reappeal shall be dismissed. The costs incurred by the reappeal shall be borne by the Re-Appellant.

Judgment ex officio is made.

1. Even if an immediate appeal is filed against a decision to authorize a change in the repayment plan in the individual rehabilitation procedure and the decision to grant immunity becomes final and conclusive even if the appeal or reappeal is pending in the appellate court or the reappeal, the appellant or the re-appellant is no longer entitled to appeal against a decision to authorize a change in the repayment plan, and thus, the immediate appeal or reappeal is unlawful. The reasons

A. An immediate appeal filed against a decision to authorize a repayment plan has no effect of suspending execution, unless the appellate court or the court with pending rehabilitation proceedings suspend, in whole or in part, the implementation of the repayment plan because it does not affect the implementation of the repayment plan (Articles 618(2) and 247(3) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”). This also applies to a decision to authorize the change of the repayment plan. Accordingly, even if an immediate appeal is filed against a decision to authorize the repayment plan and the debtor completes repayment according to the changed repayment plan even if the appellate court or the appellate court continues to exist, the court shall grant a decision to grant a immunity and the individual rehabilitation procedure is terminated when the decision to grant a immunity becomes final and conclusive (Article 64(1) of the Debtor Rehabilitation Act, Article 96 of the Debtor Rehabilitation and Bankruptcy Act).

B. The main text of Article 625(2) of the Debtor Rehabilitation Act provides, “The exempted debtor is exempt from liability for the obligations of individual rehabilitation creditors, except for the repayment performed according to the repayment plan.” The term “Immunity” in this context refers to the existence of the debtor himself/herself, but it is impossible to compel the debtor to perform his/her obligations. Therefore, the exempted individual rehabilitation claim loses the capacity of filing a lawsuit that has ordinary claims.

C. Under rehabilitation procedures under Article 2 of the Debtor Rehabilitation Act, any change in rights of rehabilitation creditors, etc. takes effect at the time a rehabilitation plan is approved, and all or part of the obligations are exempted, extension of time limits, and extinguishment of rights (see Article 252(1) of the Debtor Rehabilitation Act). However, in the individual rehabilitation procedures under Part IV of the Debtor Rehabilitation Act, the rights of individual rehabilitation creditors are not changed due to a decision to authorize the repayment plan, but are only exempted from the responsibility to grant immunity (see Article 615(1) of the Debtor Rehabilitation Act). Therefore, even if an immediate appeal or re-appeal is pending in the individual rehabilitation procedures, if the individual rehabilitation procedures are terminated as the decision to grant authorization for the change of the repayment plan becomes final and conclusive, the right of appellant is no longer likely to recover even if the decision to grant authorization for the change of the repayment plan is revoked after the immediate appeal or re-appeal is accepted. Moreover, since the individual rehabilitation claims of the appellant remain in a natural relationship with the debtor upon the confirmation of a decision to grant immunity, even if the appellant re-determination of the repayment plan is determined, it cannot be deemed as a natural benefit.

2. According to the record, the following facts are revealed.

A. On April 13, 2015, the debtor obtained authorization of the repayment plan (for 60 months from November 25, 2014 to October 25, 2019) and submitted a draft change in the repayment plan (for 40 months from November 25, 2014 to February 25, 2018) to reduce the repayment period on January 19, 2018. The first instance court decided to authorize the above draft change in the repayment plan on May 16, 2018. The re-appellant filed an immediate appeal against the above authorization decision, and the lower court dismissed the re-appellant’s appeal on September 13, 2018. The re-appeal filed the instant reappeal on September 21, 2018.

B. On the other hand, the debtor filed an application for discharge on the ground of the completion of repayment according to the changed repayment plan on May 28, 2018, and the first instance court accepted the appeal on September 7, 2018, where the appellate court on the authorization decision to revise the repayment plan, and rendered a decision to exempt the debtor (hereinafter “instant immunity”) and announced the order of the instant immunity and the summary of the grounds on the same day. On the same day, as to the instant immunity, the creditor Foreign Exchange Beta Loan 2, a limited liability company, filed an immediate appeal on September 28, 2018. On November 16, 2018, the first instance court ordered the rejection of the appeal on the ground that the instant immediate appeal was submitted with the lapse of the period of appeal. The order to dismiss the appeal was finalized at that time.

3. Examining these facts in light of the legal principles as seen earlier, since individual rehabilitation procedures were terminated as the immunity decision of this case became final and conclusive when the reappeal procedure of this case is pending, the reappeal of this case is unlawful as there is no benefit of dissatisfaction. Therefore, the reappeal of this case is dismissed, and the costs incurred therefrom are borne by the re-appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)