[1] The meaning of "purpose" under Articles 564 (1) 1 and 651 subparagraph 2 of the Debtor Rehabilitation and Bankruptcy Act, which are provisions concerning the grounds for non-permission of discharge, refers to "purpose" under Article 564 (1) 1 and Article 651 subparagraph 2 of the Debtor Rehabilitation and Bankruptcy Act, i.e., the provision of security or extinguishment of obligation

[2] The case holding that since it is difficult to readily conclude that a repayment made prior to the repayment date of a loan has been made with the purpose of giving special interest to a certain creditor, it shall not be deemed as a ground for non-permission of the discharge under Articles 564(1)1 and 651 subparag. 2 of the Debtor Rehabilitation and Bankruptcy Act

[1] Articles 564(1)1 and 651 subparag. 2 of the Debtor Rehabilitation and Bankruptcy Act / [2] Articles 564(1)1 and 651 subparag. 2 of the Debtor Rehabilitation and Bankruptcy Act

Re-appellant

Gwangju District Court Order 2008Ra193, 194 dated October 15, 2008

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

The grounds of reappeal are examined.

Article 564(1)1 and Article 651 Subparag. 2 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Act”) provide that “When an act concerning the provision of a security or the extinguishment of an obligation, with the intention of giving special benefits to any creditor, knowing the existence of a cause for bankruptcy, does not belong to the debtor’s obligation or the method or time of such act is deemed to fall under the debtor’s obligation,” the term “purpose” in this context means a mere lack of recognition and actively desiring or attempting to do so.

The court below held that the re-appellant's repayment of the repayment of the debt to the Southern Mine Credit Union (hereinafter "Seoul Mine Credit Union") for which the maturity date has not yet arrived at one month prior to the bankruptcy and application for immunity in this case shall be deemed as an act with respect to the extinguishment of the debt for the purpose of giving any special benefits to the obligee, knowing that there was a cause for bankruptcy, and the time is not an act that does not belong to the obligor's obligation, as stipulated in Articles 564 (1) 1 and 651 subparagraph 2 of the Act.

However, according to the records, the re-appellant borrowed 13 million won on October 14, 2004 as repayment date of 14, 2008, and 2, non-applicant 1 and non-applicant 2 as to the above loan repayment obligation, and the Re-Appellant 1 and non-applicant 2 as to the above loan repayment obligation on October 28, 2004 (hereinafter "the land in this case"), and the non-applicant 1 and 3,000 won as the secured claim for reimbursement under the above guaranteed obligation, and the non-applicant 2,50,000 won as repayment amount of non-applicant 7,00 won for non-applicant 4,00 won for non-applicant 7,00 won for non-applicant 5,00 won for non-applicant 7,00 won for non-applicant 5,00 won for non-applicant 7,000 won for non-applicant 3,000 won for non-applicant 5,000 won for non-applicant 7,05,000 won.

In light of the above legal principles and the records, the Re-Appellant discharged the obligation to repay the loan to the non-party 3 of the previous creditor according to the contents of the obligation. Therefore, it is difficult to conclude that the repayment was made for the purpose of special interest to the non-party 2 of the previous creditor including the non-party 2 with this obligation (the non-party 2 filed an application for bankruptcy and immunity on the same day as the re-appellant is confirmed, and the bankruptcy and immunity has already become final and conclusive, and the non-party 1 established a collateral security right on the land of this case as the secured claim for indemnity against the guarantee obligation, and thus the repayment in this case is not deemed to have been made for the purpose of giving special interest to the above guarantor). Thus, even if the repayment in this case was made prior to the repayment date of the above loan, it cannot be deemed to constitute grounds for refusing the above exemption, and the judgment of the court below contrary thereto is unlawful.

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 Hong-hoon (Presiding Justice)