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

[2] The case holding that it is not allowed for the court to dismiss a petition for bankruptcy on the ground that the "property list recorded in the "property column of relatives" and "data evidencing evidence of debts to creditors" among the matters ordered to correct to the petitioner for bankruptcy do not fall under the attached documents at the time of the petition for bankruptcy as stipulated in the Debtor Rehabilitation and Bankruptcy Act, etc.

[1] Article 309 (1) 5 of the Debtor Rehabilitation and Bankruptcy Act provides that "when an application is not bona fide," the term "when an application is filed" refers to a case where a debtor has omitted the matters to be stated in the application under Article 302 (1) of the above Act, or has not submitted the attached documents under Article 302 (2) of the above Act and Article 72 of the "Rules on Debtor Rehabilitation and Bankruptcy", and the debtor has failed to comply with the order without justifiable grounds despite the court urged correction. Therefore, if the matter ordered by the court for correction is about the matter that is not required by the above Act and subordinate statutes, it is not allowed for the debtor to dismiss the application for bankruptcy on the ground that the matter is not fulfilled. In addition, if the debtor complies with the court's request for correction, even if the contents failed to meet the court's requirements, it is not allowed to immediately dismiss the application for bankruptcy without providing an opportunity to correct it through additional correction request or examination.

[2] The case holding that it is not allowed to dismiss a petition for bankruptcy on the ground that the "property list recorded in the item column of the relative's property and the "data evidencing the creditor's debts" among the matters ordered to be corrected do not fall under the attached documents at the time of the petition for bankruptcy as stipulated in Article 302 (2) of the Debtor Rehabilitation and Bankruptcy Act and Article 72 of the "Rules on Debtor Rehabilitation and Bankruptcy", and it is not allowed to dismiss the petition for bankruptcy on the ground that the applicant for bankruptcy failed to fully implement the order of revised matters, and even if the above revised matters were to require the submission of the essential materials required by law, it is not allowed to immediately dismiss the petition for bankruptcy without giving any additional opportunity for correction.

[1] Articles 302 and 309(1)5 of the Debtor Rehabilitation and Bankruptcy Act; Article 72 of the Rules on Debtor Rehabilitation and Bankruptcy / [2] Articles 302 and 309(1)5 of the Debtor Rehabilitation and Bankruptcy Act; Article 72 of the Rules on Debtor Rehabilitation and Bankruptcy

Re-appellant

Jeju District Court Order 2008Ra9 dated June 26, 2008

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

The grounds of reappeal are examined.

1. The meaning of Article 309 (1) 5 of the Debtor Rehabilitation and Bankruptcy Act and the criteria for judgment;

Article 309 (1) 5 of the Debtor Rehabilitation and Bankruptcy Act provides that "when an application is not bona fide," the term "when an application is filed" refers to a case where a debtor has failed to enter matters in the application under Article 302 (1) of the above Act, or failed to submit attached documents under Article 302 (2) of the above Act and Article 72 of the "Rules on Debtor Rehabilitation and Bankruptcy", and where a debtor has urged the court to correct such matters without justifiable grounds. Therefore, if a matter ordered to correct is about the matter that is not required under the above Act and subordinate statutes, it is not allowed for the court to dismiss the application for bankruptcy on the ground that the debtor has failed to comply with the requirements of the court. In addition, even if a debtor complies with the court's request for correction, it is not allowed to immediately dismiss the application for bankruptcy without providing the court with an opportunity to correct such matter through additional correction request or examination.

2. Determination:

A. The record reveals the following facts.

(1) The first instance court issued an order of correction as of December 28, 2007, stating that the re-appellant who filed a petition for bankruptcy will submit the details of the motor vehicle (to attach a well-known document), ② a criminal judgment, ③ a list of property recorded in the property column of relatives, ④ a certified copy of the residential building registry, ⑤ a certificate of property tax assessment in 202-2007, ⑤ a certificate of personal creditors and 6 a certificate of personal creditors and 20, and a certificate of obligation verification against creditors as of December 28, 2007.

(2) On January 15, 2008, the Re-Appellant submitted the documents required in the above (1), (2), (4), and (5) to the court, (3) to her husband's non-applicant's value-added tax base certificate to the court, and (6) to her obligee's non-applicant's non-applicant's non-appellant's non-appellant's non-appellant's non-appellant's non-appellant's non

(3) On January 28, 2008, the first instance court dismissed a petition for bankruptcy on the ground that the re-appellant's petition was not bona fide without going through any procedure such as ordering the re-appellant to make an additional correction or taking an examination.

B. The court below dismissed the Re-Appellant's appeal and maintained the first instance court's decision in addition to the supplementary judgment that the Re-Appellant did not faithfully perform the order of correction as to the above paragraphs (3) and (6) and that the Re-Appellant did not cause bankruptcy.

C. However, in light of the aforementioned legal principles and the record, the above measures of the court below cannot be maintained any longer as unlawful.

(1) Among the matters ordered by the court as ordered to correct, the Re-Appellant’s property list as indicated in the Re-Appellant’s property column, 6. Data evidencing the obligee’s debt to the obligee does not fall under the attached documents stipulated in Article 302(2) of the Debtor Rehabilitation and Bankruptcy Act and Article 72 of the "Rules on Debtor Rehabilitation and Bankruptcy" (the law requires submission of the obligee list, the obligor’s property list, the obligor’s income and expenditure list, etc.). Thus, it is not allowed to dismiss the petition of bankruptcy on the ground that the Re-Appellant failed to fully perform the order of correction (the re-appellant submitted some of the above paragraphs (3) and (6) in this case, and the remainder is deemed not to have been submitted due to lack of understanding about the content of the

(2) The first instance court dismissed a petition for bankruptcy without going through any procedure, such as ordering the re-appellant to make an additional correction or having an examination despite having performed a considerable part of the re-appellant's order of correction. Even if the contents of family paragraphs (3) and (6) were to require the submission of necessary materials required by law, it is not permissible to immediately dismiss the petition for bankruptcy without giving any additional opportunity for correction to the re-appellant who responded to the correction.

(3) The court below held that there is no cause for bankruptcy against the re-appellant, and accordingly suggested the property or income of the re-appellant's husband. However, barring special circumstances such as the husband of the re-appellant's status as a debt guarantor against the re-appellant or his/her intent to perform his/her debt, it cannot be considered to determine the cause for bankruptcy of the re-appellant. Thus, the above additional judgment is unlawful.

3. 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 Yang Chang-soo (Presiding Justice)