In a case where an execution court makes an application for enforcement among the immunity procedures stipulated in Article 557(1) of the Debtor Rehabilitation and Bankruptcy Act and initiates compulsory execution, whether the execution procedure already made shall be revoked ex officio (affirmative), and whether the same applies even if a decision not to grant immunity becomes final and conclusive (affirmative)

Article 57(1) of the Debtor Rehabilitation and Bankruptcy Act

Seoul Guarantee Insurance Co.

The debtor

Seoul Central District Court Order 2012Ra1527 dated May 10, 2013

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

The grounds of reappeal are examined.

The former part of Article 557(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “the Act”) provides that “when there exists an application for immunity, and a decision to discontinue a bankruptcy becomes final and conclusive or a decision to discontinue a bankruptcy is rendered, any compulsory execution, provisional seizure or provisional disposition based on a bankruptcy claim against the debtor’s property shall not be made until the judgment on the application for immunity becomes final and conclusive.” Thus, if the executing court, even though an application for the execution under the above procedure for immunity is filed by the executing court, and finds it after commencing compulsory execution, it shall ex officio revoke the execution procedure, and the same applies even if the decision to refuse

According to the reasoning of the order of the court below and the record, the re-appellant filed an application for bankruptcy and exemption as of April 13, 2010, the court below rendered a ruling of bankruptcy and discontinuation of bankruptcy against the re-appellant on July 2, 2010. The above ruling was finalized on July 20, 2010; the other party's request for auction of this case was defective on the basis of bankruptcy claim against the re-appellant on December 10, 2010; the judicial assistant of the court of the first instance issued the ruling of commencement of auction of this case on December 13, 2010; on November 6, 2012, the other party rejected the request for auction of this case on the ground that the ground that the ground for commencement of auction existed; and on the other hand, the other party filed an immediate appeal on November 20, 2010, and the court of first instance rejected the request for discharge of this case on the ground that the judgment of the court of first instance revoked the above judgment's order on May 21, 21.

In light of the above facts in light of the legal principles as seen earlier, the decision to commence the auction of this case was based on bankruptcy claims during the exemption procedure, and thereafter, it should be cancelled ex officio by the court of execution even if the decision not to grant immunity against the re-appellant became final and conclusive. However, the court below determined otherwise. In so doing, the court below erred by misapprehending the legal principles on the interpretation and application of the former part of Article 557(1) of the

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 Min Il-young (Presiding Justice)