Method of Appeal to the dismissal of the application for the revocation of discharge in the individual rehabilitation procedure(=special appeal)

Article 33 of the Debtor Rehabilitation and Bankruptcy Act provides that "if there is no provision in this Act concerning rehabilitation procedures, the Civil Procedure Act shall apply mutatis mutandis." Article 13 (1) of the same Act provides that "Any person who has an interest in a trial pursuant to the provisions of this Act may file an immediate appeal only when otherwise provided in this Act." Article 627 of the same Act provides that "An immediate appeal may be filed against a decision on whether to grant immunity and a decision on the revocation of immunity may be filed." Since Article 33 of the same Act does not provide any provision against a decision on the revocation of a request for discharge, an immediate appeal may not be filed, and only the special appeal under Article 449 (1) of the Civil Procedure Act is permitted

Articles 13(1), 33, 626, and 627 of the Debtor Rehabilitation and Bankruptcy Act; Article 449(1) of the Civil Procedure Act

Special Appellants

Chuncheon District Court Order 2015No2 dated July 21, 2015

The special appeal is dismissed.

Judgment ex officio is made.

1. According to the records, a creditor filed an application for the cancellation of discharge after a decision of immunity becomes final and conclusive in the individual rehabilitation procedure against a debtor, and the court of original judgment dismissed the creditor's application for the cancellation of discharge on July 21, 2015, and upon submitting an application for permission to the effect that the creditor submitted a written objection and filed a request for the cancellation of discharge, the court of original judgment sent the records of proceedings to the Chuncheon District Court’s appeal register, and the Chuncheon District Court’s appeal register deemed it an immediate appeal and rendered a decision to dismiss the appeal.

2. However, Article 33 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”) provides that “When there is no provision in this Act concerning rehabilitation procedures, the provisions of the Civil Procedure Act shall apply mutatis mutandis.” Article 13(1) provides that “Any person who has an interest in a trial under the provisions of this Act may file an immediate appeal only when otherwise provided in this Act.” Article 627 of the same Act provides that “An immediate appeal may be filed against a decision on whether to grant immunity and a decision on the revocation of immunity may be filed.” As such, an immediate appeal may not be filed against the decision on the revocation of immunity, and only the special appeal under Article 449(1) of the Civil Procedure Act shall be construed as being permitted. In a case of an objection against a trial that is permitted only under the special appeal, even if the party did not indicate the indication that special appeal is particularly special appeal and the appellate court is not the Supreme Court, the court in receipt of such written appeal shall regard it as a special appeal and send the records of trial to the Supreme Court (see, e.g., Supreme Court Order 2000Ma16, Jun. 16, 2019, 20197.

Nevertheless, the lower court sent the record to the appellate court and tried as the appellate court as above. This is so unlawful as it is so far as a court without authority. Thus, it shall be deemed that the instant case is a special appeal against the lower court’s decision and handle it (see Supreme Court Order 97Ma250, Jun. 20, 1997; Supreme Court Order 2010Ma1689, Feb. 21, 201, etc.).

3. The grounds of special appeal shall be examined;

Article 449(1) of the Civil Procedure Act provides that a special appeal may be made to the Supreme Court only on the ground that there is a violation of the Constitution that affected the trial with respect to a ruling or an order, rule, or disposition, which is the premise of the trial, or that the judgment is unreasonable. Thus, a special appeal may not be made to the Supreme Court on the sole ground that the ruling or order was in violation of the Act or is in violation of the Supreme Court precedents (see, e.g., Supreme Court Order 2014Da502, May 26, 2014).

However, the grounds alleged by the special appellant are merely a violation of Article 626(1) of the Debtor Rehabilitation Act by the lower court or a misunderstanding of the legal doctrine thereon, and thus does not constitute legitimate special appeal grounds. Furthermore, even upon examining the record, there is no unreasonable judgment as to the violation of the Constitution, or any order, rule, or disposition that affected the judgment of the lower court, or the violation of the Constitution or any law, which is the premise of the judgment.

4. Therefore, the special appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)