[1] The meaning of “claim not entered in the list of creditors in bad faith” under Article 566 subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act, and the standard for determining whether an obligor has bad faith

[2] The case holding that each of the above decisions became final and conclusive in a case where Gap omitted the entry of credit card payments against Eul corporation in filing an application for personal bankruptcy and exemption, and subsequently received a bankruptcy and exemption decision, the above obligations do not constitute the exemption obligation on the ground that "the debtor has not been entered in the list of creditors in bad faith" under Article 566 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act

[1] "Claims that are not entered in the list of creditors in bad faith" under Article 566 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act refers to cases where a debtor is aware of the existence of an obligation against a bankruptcy creditor before immunity is granted and fails to enter it in the list of creditors. Thus, if the debtor 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 non-exempt claims under the above Article 566 (1). However, if the debtor was aware of the existence of an obligation, it constitutes a non-exempt claim under the above Article 566 (1) of the Debtor Rehabilitation and Bankruptcy Act even if he did not enter it in the list of creditors by negligence. The reason for excluding a claim that is not entered in the list of creditors, if there is a creditor who is not entered in the list of creditors, the creditor would be deprived of the opportunity to raise an objection to the application for immunity within the scope of immunity procedure, and accordingly, if immunity is permitted and finalized without objective verification of the grounds for refusing immunity under Article 564 of the above Article 564, it should be determined in full view of the obligor's and the aforementioned circumstances.

In addition, the phrase “when the debtor was unaware of the existence of an obligation” includes not only cases where the debtor was unaware of the existence of the obligation itself, but also cases where the debtor knew that his/her obligation was extinguished due to the lapse of a long period of time or other circumstances, but also cases where the debtor knew of the existence of the obligation, but also cases where the debtor omitted the entry in the list of creditors due to a net mistake or negligence even though he/she was aware of the existence of the obligation.

[2] In a case where Gap omitted the entry of credit card payment to Eul corporation in filing an application for personal bankruptcy and exemption, and thereafter the bankruptcy and exemption decision became final and conclusive, the case holding that since it appears that Gap omitted entry of credit card payment to Eul corporation in the creditors' list in the simple manner or care with the knowledge of the existence of credit card payment to Eul corporation at the time of the above application for bankruptcy and exemption, since it appears that Gap omitted entry of credit card payment in the creditors' list at the time of the above application for bankruptcy and exemption, the above obligation does not constitute an exemption obligation since "the debtor did not enter it in the creditors' list in bad faith" under Article 566 subparagraph 7

[1] Article 566 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act / [2] Article 566 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act

[1] Supreme Court Decision 2010Da49083 decided Oct. 14, 2010 (Gong2010Ha, 2094)

Plaintiff

New Card Corporation

Jeonju District Court Decision 2013Da7627 decided October 25, 2013

June 12, 2014

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The plaintiff's credit card payment obligation (the date of issuance of a credit card: May 7, 1998; principal of debt: 4,810,098) against the defendant is proved to be exempted.

2. Purport of appeal

It is as set out in paragraphs 1 and 2 of this Decree.

1. Basic facts

A. The Plaintiff received a credit card from the Defendant on May 7, 1998, and used the said credit card from October 200 to March 201, 201. As of June 3, 2013, the credit card payment obligation as of June 3, 2013 is a total of KRW 7,809,965 (hereinafter “instant obligation”).

B. On June 28, 2011, the Plaintiff applied for individual rehabilitation with the Jung-gu District Court 201 1730, Jun. 28, 2011, and withdrawn the said application on September 2, 2011. At the time, the Plaintiff omitted the entry of the instant obligation.

C. On July 18, 2011, the Nonparty, who is the husband of the Plaintiff, committed suicide by putting the Plaintiff at his own interest. On April 3, 2012, the Plaintiff filed an application for individual bankruptcy and immunity with the Daejeon District Court (2012Hadan800, and 2012Ra798) on April 3, 2012. At the time of the said application, the Nonparty omitted the entry of the instant debt in the list, and thereafter, the Nonparty, who was the husband, filed a bankruptcy and exemption. Each of the above decisions became final and conclusive around that time.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-5, Gap evidence 2, 3-1, 2-4-1 through 5, Gap evidence 6-1, 2, and Eul evidence 1, the purport of the whole pleadings

2. The assertion and judgment

A. The party's assertion

1) The plaintiff's assertion

After the Plaintiff’s husband committed suicide on July 18, 201, the Plaintiff was seriously shocked due to mental distress. After the Plaintiff’s husband’s death, the Plaintiff was urged to have a debt business operator paid a greater amount. After the Plaintiff’s death, the Plaintiff transferred to the Plaintiff the house of the people in Incheon, Suwon, and Yananan, etc., who were in the territory of the Republic of Korea. Reference to the application documents for personal rehabilitation prepared before the time of the application for bankruptcy and exemption, the Plaintiff had prudented, but omitted entry in the list of creditors because the instant obligation against the Defendant was not memory. If the Defendant was aware of the instant obligation against the Defendant, it would have been naturally written. Accordingly, the Plaintiff did not enter the instant obligation in the list of creditors, and thus, the instant obligation should also be deemed exempted.

2) The defendant's assertion

Since it is reasonable to see that the Plaintiff was aware of the existence of the instant debt, the instant debt constitutes “claim not entered in the list of creditors in bad faith” under Article 566 subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act, and thus excluded from the subject of immunity.

B. Determination

1) Article 566 Subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act provides, “Claims that are not entered in the list of creditors in bad faith” means cases where an obligor is aware of the existence of an obligation against a bankruptcy creditor before immunity is granted. Thus, if an 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 non-exempt claims as prescribed in the above Article 566 of the Debtor Rehabilitation and Bankruptcy Act. However, if an obligor was aware of the existence of an obligation, the obligor’s failure to enter it in the list of creditors by negligence constitutes non-exempt claims as prescribed in the above Article 566(1) of the same Act. The grounds for excluding claims not entered in the list of creditors are excluded from the scope of immunity. If an obligee is not entered in the list of creditors, the obligee would be deprived of the opportunity to raise an objection to the application for immunity within the scope of immunity procedure, and accordingly, it should be determined in light of the objective verification of the grounds for refusing immunity as prescribed in Article 564 of the above Article 564 of the Act, and the obligor’s intent of omission.

In addition, the phrase “when the debtor was unaware of the existence of an obligation” includes not only cases where the debtor was unaware of the existence of the obligation itself, but also cases where the debtor knew that his/her obligation has been extinguished due to the lapse of a long period or other circumstances, but also cases where the debtor knew of the existence of the obligation, but also cases where the debtor omitted the entry in the creditor’s list due to the timely exploitation or care, even though he/she knew of the existence of the obligation.

2) However, according to the evidence Nos. 2, 5 and 7, the Plaintiff issued a credit card with the Defendant and used it for more than ten years until March 201, the Defendant urged the Plaintiff to pay the instant debt by telephone, text message, and mail. On July 6, 2011, the Plaintiff knew the Plaintiff of the application for personal rehabilitation in the currency with the Defendant’s employee, and issued a confirmation of the liability for the instant debt through a certified judicial scrivener’s office on July 18, 201, and on July 25, 2011, notified the Defendant of the application for personal rehabilitation at the currency with the Defendant’s employee.

According to the above facts, the Plaintiff was clearly aware of the existence of the instant obligation against the Defendant around July 18, 201, and in light of the fact that the Plaintiff’s application for bankruptcy and exemption was made 8 months later than that time, the Plaintiff appears to have omitted the entry of the instant obligation in the list of creditors due to the instant claim for bankruptcy and exemption, even if he was aware of the existence of the instant obligation at the time of the application for exemption from liability, even though he was aware of the existence of the instant obligation at the time of the application for bankruptcy and exemption from liability, in view of the circumstances such as the husband’s death.

Therefore, this case's obligation against the defendant is "the obligor has not been entered in the creditor's list in bad faith," and thus, it does not constitute an exemption obligation. Thus, the plaintiff's above assertion on the premise that the obligation constitutes an exemption obligation is

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed as per Disposition.

Judges Jin-nam (Presiding Judge)