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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On March 10, 2008, the Plaintiff set KRW 60,000 to the Defendant on March 10, 2008 as due date for reimbursement of KRW 60,000,000 to five percent per annum.
B. Meanwhile, on September 3, 2015, the Defendant filed an application for bankruptcy or exemption with the Busan District Court and the Busan District Court rendered a decision of immunity on April 15, 2016 in the case of adjudication of bankruptcy No. 2015Hadan2104, 2015Ma2104, which became final and conclusive around that time.
The plaintiff was not stated in the list of creditors submitted by the defendant to the above court.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 2, the purport of the whole pleadings
2. Determination as to the legitimacy of the instant lawsuit
A. Article 566 subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act states that “a claim which an obligor has not been entered in the list of creditors in bad faith” refers to a case where an obligor, despite being aware of the existence of an obligation against a bankruptcy creditor before immunity is granted, failed to enter it in the list of creditors. Therefore, if the obligor was unaware of the existence of an obligation, even if he was negligent in not knowing the existence of the obligation, it does not constitute a non-exempt claim under the above provision, but if the obligor was aware of the existence of an obligation, it constitutes a non-exempt claim under the above provision even if he
Determination of the obligor’s bad faith with respect to the preparation of a list of creditors that does not fit the facts ought to be made by fully taking into account the purport of Article 566 subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act. Determination should be made by comprehensively taking into account various circumstances, such as the details of omitted claims and the relationship between the obligor and the obligee, the relationship between the obligee and the obligor, and the obligor
(See Supreme Court Decision 2010Da49083 Decided October 14, 2010). B.
Judgment
In light of the above legal principles, we examine the instant case.