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(영문) 서울중앙지방법원 2019.01.18 2018가합563313
대여금
Text

1. The plaintiff's bankruptcy debtor C, which is the taking over of the lawsuit by defendant B and C, shall be subject to D.

Reasons

1. On June 5, 2015, the Plaintiff determined and lent KRW 300 million to Defendant B Co., Ltd. (hereinafter “Defendant B”) at the interest rate of 1.5% per annum (18%) and due date on June 5, 2016.

Defendant B’s obligation to pay the principal and interest of the above loan to the Plaintiff was jointly and severally guaranteed by C (hereinafter “C”), Defendant E, F, and G.

[Ground] Bankruptcy Trustee D (hereinafter “Defendant trustee in bankruptcy”) of the bankrupt debtor C, which is the taking over of the lawsuit by Defendant B and Defendant C: The absence of dispute, each entry of the evidence Nos. 1 and 2, and the purport of the entire pleadings, Defendant E, F, and G: Confession (Article 150(1) and (3) of the Civil Procedure Act)

2. The bankruptcy claim against the defendant B and the trustee in bankruptcy, which is a property claim arising before the bankruptcy is declared against the defendant B and the trustee in bankruptcy, may not be exercised without resorting to the bankruptcy procedure.

(Article 423 and 424 of the Debtor Rehabilitation and Bankruptcy Act). Defendant B was declared bankrupt on August 31, 2018 by the Seoul Rehabilitation Court 2018Hahap100206, and appointed H as the bankruptcy trustee. The fact that C was declared bankrupt on August 29, 2018 by the Seoul Rehabilitation Court 2018Hahap10204 and appointed D as the bankruptcy trustee is either a dispute between the parties, or is obvious between the parties, and the fact that the Plaintiff’s claim against Defendant B and C was a claim for property arising from the cause that occurred prior to the declaration of bankruptcy is recognized as above.

Therefore, it is not permissible for the Plaintiff, who is a bankruptcy creditor, to seek the performance of the claim claim of this case as a civil lawsuit premised on individual compulsory execution of claim without resorting to bankruptcy procedures. Therefore, the Plaintiff’s lawsuit is unlawful as there is no benefit of lawsuit

3. According to the facts acknowledged prior to the determination of each claim against Defendant E, F, and G, Defendant E, F, and G are joint and several sureties of the above loan principal against the Plaintiff, and the Plaintiff is jointly and severally liable to pay the principal and interest of the loan to the Plaintiff.

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