[1] Meaning of “where a request is not bona fide” as a ground for dismissal in a petition for bankruptcy under Article 309(1)5 of the Debtor Rehabilitation and Bankruptcy Act, and whether it is permissible to dismiss the petition for bankruptcy without providing a corrective opportunity for non-performance of correction order or for insufficient correction (negative)

[2] The case holding that the debtor's failure to enter the apartment disposal in the application when filing a petition for bankruptcy cannot be deemed to constitute "when the application is not bona fide" under Article 309 (1) 5 of the Debtor Rehabilitation and Bankruptcy Act

[1] Article 309 (1) 5 of the Debtor Rehabilitation and Bankruptcy Act provides that "when a petition for bankruptcy is not bona fide," the "when the debtor has failed to comply with the requirements of the court," refers to the case where the debtor has failed to submit the attached documents stipulated in Article 302 (1) of the same Act or the documents stipulated in Article 302 (2) of the same Act and Article 72 of the Rules on Debtor Rehabilitation and Bankruptcy, and the debtor has failed to comply with the request without justifiable grounds despite the court being urged to make amendments. If the matters ordered to revise are not legally required, the court is not allowed to dismiss the petition for bankruptcy on such ground even if the debtor has failed to comply with the above matters. If the debtor fails to comply with the request of the court for revision, it is not allowed to immediately dismiss the petition for bankruptcy without providing the court with an opportunity to correct it through additional correction or examination.

[2] In a case where the debtor did not enter the fact that he sold the apartment owned by the debtor while filing a petition for bankruptcy, but the first instance court rejected the petition for bankruptcy without providing the debtor with an opportunity to correct it through a correction or examination even though he was aware that the fact of disposal of the apartment was omitted at the time of the petition for bankruptcy, and the debtor explained the facts and circumstances of the disposal of the apartment and submitted explanatory materials, but the court below maintained the first instance court's decision on the ground that the failure to file a petition for the disposal of the apartment does not constitute "when the application is not bona fide" under Article 309 (1) 5 of the Debtor Rehabilitation and Bankruptcy Act

[1] Articles 302 and 309(1)5 of the Debtor Rehabilitation and Bankruptcy Act; Article 72 of the Rules on Debtor Rehabilitation and Bankruptcy / [2] Articles 302 and 309(1)5 of the Debtor Rehabilitation and Bankruptcy Act; Article 72 of the Rules on Debtor Rehabilitation and Bankruptcy

[1] Supreme Court Order 2008Ma1070 dated September 25, 2008 (Gong2008Ha, 1451)

[Judgment of the court below]

Suwon District Court Order 2010Ra912 dated May 2, 2011

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

The grounds of reappeal are examined.

In Article 309(1)5 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Act”), “when a request is not bona fide” refers to a case where a debtor has omitted the matters to be entered in the application as provided in Article 302(1) of the Act, or has not submitted the attached documents as provided in Article 302(2) of the Act and Article 72 of the Rules on Debtor Rehabilitation and Bankruptcy, and the debtor has failed to comply with the request without justifiable grounds despite the court urged correction. If the matter ordered by the court to be corrected is about the matter that is not required by the Act and subordinate statutes, it is not allowed for the debtor to dismiss the petition for bankruptcy on such ground even if the debtor failed to comply with the request of the court for correction, even if the contents failed to meet the requirements of the court, it is not allowed for the court to immediately dismiss the petition for bankruptcy without providing an opportunity to correct it (see Supreme Court Order 208Ma10708, Sept. 25, 2008).

According to the reasoning of the order of the court below, on April 9, 2009, the court below maintained the decision of the court of first instance that dismissed the application for bankruptcy and exemption of this case on the ground that the re-appellant sold 1086 Hanyang apartment-dong 225 (hereinafter omitted) owned by the re-appellant to the re-appellant for KRW 240,00,000, and did not enter it in the application of this case on June 30, 2009, and such act constitutes the "when the application is not bona fide" as stipulated in Article 309 (1) 5 of the Act.

However, according to the records, the first instance court rejected the application of this case without providing the re-appellant with an opportunity to correct it through a request for correction or examination even though the re-appellant knew that the fact of apartment disposal was omitted at the time of the application of this case, and the re-appellant explained the fact and circumstance of the apartment disposal and submitted explanatory materials as to it. However, the court below determined that the application of this case should be dismissed on the ground that the re-appellant was not bona fide.

Examining these circumstances in light of the legal principles as seen earlier, it is difficult to view that the lower court’s omission of an application for apartment disposal in question constitutes “when the application is not bona fide,” as stipulated in Article 309(1)5 of the Act, regardless of whether the omission of application for exemption constitutes grounds for rejection of exemption.

The judgment of the court below is erroneous in the misunderstanding of legal principles as to "when the application is not bona fide," which is a ground for dismissing a petition for bankruptcy as provided in Article 309 (1) 5 of the Act, which affected the conclusion of the judgment. The ground for reappeal

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 Lee In-bok (Presiding Justice)