In a case where an obligor stated at the time of filing an application for bankruptcy and exemption that there was no property other than a small-sum deposit, in particular, no inherited property exists at the time of filing an application for exemption, but, on the premise that the obligor-friendly obligee had the inheritance share in the land’s name on the premise that his/her mother had already died, the obligor filed an application for exemption from liability despite the assumption that he/she had the inheritance share in the land’s name, the case reversing the order of the court below that held that there is no ground for refusing exemption from liability on the ground that, inasmuch as the obligor cannot be deemed to have been inherited by the mother as long as the shares were not yet owned by the obligor, and thus, the obligor could not be deemed to have omitted the inheritance share in the land’s name despite the mother’s death.

Article 564(1)3 of the Debtor Rehabilitation and Bankruptcy Act

Creditors

The debtor

Changwon District Court Order 2009Ra155 dated April 28, 2010

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

The grounds of reappeal are examined.

1. The court below held that the debtor's assertion of the re-appellant that it is possible to repay to the re-appellant due to his/her mother's property, such as his/her share of inheritance, constitutes grounds for refusing to grant immunity under Article 564 (1) 3 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter "Act"), even if the debtor's mother's inheritance of the above real estate cannot be viewed as having been inherited from his/her mother, so long as the debtor's inheritance of the above real estate, it is not yet a debtor's property, and thus, there is no ground for refusing to grant immunity under each subparagraph of Article 564 (1) of the Act, and maintained the first instance court's decision allowing the debtor

2. However, we cannot accept the above judgment of the court below as it is.

Article 564(1)3 of the Act provides that “When an obligor submits a false list of creditors or any other application document or makes a false statement about the status of his/her property to the court, the obligor shall not be entitled to immunity.” In light of the record, the obligor stated that no property exists except KRW 5,00 in the inventory at the time of the application for bankruptcy and exemption from liability. However, the Re-Appellant, as a pro-friendly type of the obligor, on the premise that his/her mother was already dead since the first instance court, pursuant to the premise that 3 Msan City (dong name omitted) under the name other than the above application, 1-14 and 1-24 had inheritance shares in the land, the obligor filed an application for exemption from liability even if he/she had concealed the inheritance shares in the above 2 lots, the lower court should have examined whether the obligor did not comply with the request by the obligor, even though he/she renounced the inheritance shares in the above 2 lots and did not comply with the request by the obligor.” Furthermore, the lower court should have determined whether the obligor was a joint owner other than the above 130 years of the above parcels.

Nevertheless, the court below's decision that the grounds for refusing to grant immunity to the debtor cannot be found solely for the reasons stated in its holding is erroneous in the misapprehension of legal principles as to the grounds for refusing to grant immunity under Article 564 (1) 3 of the Act, which affected the conclusion of the decision by failing to exhaust all necessary deliberations. The grounds for reappeal pointing this out are with merit

3. 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 Park Si-hwan (Presiding Justice)