[1] Whether immunity becomes effective for claims not entered in the list of individual rehabilitation creditors (negative)

[2] The scope of immunity on a claim for the return of a lease deposit of a housing lessee where a decision to grant immunity on a lessor is terminated after the decision to grant immunity becomes final and conclusive without a lessor’s repayment of a claim for the return of a lease deposit from the proceeds from the realization of a real estate due to a lack of realization of a leased house

[1] According to Articles 39, 71(1)1 and 3, 83(1), and 84(2)1 of the former Individual Debtor Rehabilitation Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005), the part excluding the repayment according to the repayment plan among individual rehabilitation claims entered in the list of individual rehabilitation creditors who are subject to repayment of the repayment plan is all exempted, but the exemption from immunity is not effective since the claim not entered in the list of individual rehabilitation creditors cannot be subject to repayment according to the repayment plan.

[2] A housing lessee may obtain satisfaction of his/her right to preferential reimbursement under Article 46(1) of the former Individual Debtor Rehabilitation Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005; hereinafter “former Individual Debtor Rehabilitation Act”) within the scope of the right to preferential reimbursement recognized by Article 46(1) of the former Debtor Rehabilitation Act. Thus, even if the entire amount of the right to repayment of the lease deposit of a housing lessee was stated in the list of individual rehabilitation creditors submitted by the lessor, who is an individual rehabilitation debtor, only the remainder of the claims, excluding the right to preferential reimbursement, shall be subject to the repayment under the restraint of the individual rehabilitation procedure, and the right to preferential reimbursement under the list of individual rehabilitation creditors having the effect of the immunity

Therefore, even if the decision of immunity becomes final and conclusive and conclusive without being repaid the claims for the return of the lease deposit from the proceeds from the realization of the leased house due to the failure of the realization of the leased house in the course of the individual rehabilitation procedure against the lessor, barring any special circumstance, the exemption does not affect the effect of immunity by falling under the “claim not entered in the list of individual rehabilitation creditors” that does not fall under the scope of the preferential repayment right recognized under Article 46(1) of the former Individual Debtor Rehabilitation Act among the claims for the return of the lease deposit of the housing lessee, barring special circumstances.

[1] Articles 39 (see current Article 582 of the Debtor Rehabilitation and Bankruptcy Act), 71 (1) 1 (see current Article 611 (1) 1), 3 (see current Article 611 (1) 3 of the Debtor Rehabilitation and Bankruptcy Act), 83 (1) (see current Article 624 (1) of the Debtor Rehabilitation and Bankruptcy Act), 84 (2) 1 (see current Article 625 (2) 1 of the Debtor Rehabilitation and Bankruptcy Act), 71 (1) 1 (see current Article 611 (1) 1 of the Debtor Rehabilitation and Bankruptcy Act), 83 (1) (see current Article 624 (1) of the Debtor Rehabilitation and Bankruptcy Act), 84 (2) 2 (see current Article 625 (2) 1 of the Debtor Rehabilitation and Bankruptcy Act), 3-2 (2) of the Housing Lease Protection Act, Article 71 (1) 1 of the former Debtor Rehabilitation and Bankruptcy Act (see current Article 616 (1) of the Debtor Rehabilitation and Bankruptcy Act) of the Act)

Plaintiff (Law Firm Daeho, Attorneys Seo Dong-dong et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Jong-min, Counsel for defendant-appellant)

Busan District Court Decision 2013Na18469 Decided April 30, 2014

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Article 39 of the former Individual Debtor Rehabilitation Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005; hereinafter “former Individual Debtor Rehabilitation Act”) provides that “any act extinguishing individual rehabilitation claims entered in the list of individual rehabilitation creditors, such as repayment or repayment, shall not be performed (excluding exemption) without resorting to the repayment plan.” Accordingly, Article 71(1) of the former Individual Debtor Rehabilitation Act provides that “The repayment plan shall include matters concerning the property and income offered for the repayment of obligations (Article 1)” and “matters concerning the repayment of all or part of individual rehabilitation claims entered in the list of individual rehabilitation creditors (Article 3)” provides that “When a debtor has completed the repayment plan, the court shall, at the request of the party concerned or ex officio, enter the repayment plan in the list of individual rehabilitation claims that are not subject to exemption, the portion of the repayment plan that is not subject to exemption shall not be subject to exemption,” while Article 83(1) of the former Debtor Rehabilitation Act provides that “the repayment plan is not subject to exemption.”

On the other hand, a housing lessee who has requirements for counterclaim and a fixed date under the Housing Lease Protection Act can exercise preferential rights to the proceeds from the sale of a leased house (including the site; hereinafter the same shall apply) if the leased house is sold at auction, and such preferential rights to the repayment are deemed to have the nature of the so-called statutory collateral, and to protect the lessee based on the lease value of the leased house at the time of the establishment of the lease (see Supreme Court en banc Decision 2004Da26133, Jun. 21,

Accordingly, Article 46(1) of the former Individual Debtor Rehabilitation Act provides that "a tenant who meets the requirements for counterclaim provided for in the provisions of Article 3(1) of the Housing Lease Protection Act and has obtained a fixed date on a lease agreement document shall have the right to be paid security deposit in preference to junior creditors and other creditors from the proceeds from the sale of a house (including a site) that belongs to an individual rehabilitation foundation," thereby protecting a housing lessee who has a preferential right to payment in accordance with the right to foreclose

As above, within the scope of the preferential repayment right recognized under Article 46(1) of the former Individual Debtor Rehabilitation Act, a housing lessee may obtain satisfaction of his/her claim for return of the lease deposit without resorting to the individual rehabilitation procedure against a lessor. Thus, even if the whole amount of the claim for return of the lease deposit of a housing lessee was entered in the list of individual rehabilitation creditors submitted by a lessor, who is an individual rehabilitation debtor, the lessor shall be deemed to fall under individual rehabilitation claims that are recorded in the list of individual rehabilitation creditors, including the aforementioned portion of the claim for return of the lease deposit of a housing lessee, the remainder of the claim excluding the portion

Therefore, it is reasonable to view that the effect of immunity does not extend to the extent of the right to preferential reimbursement recognized under Article 46(1)1 of the former Individual Debtor Rehabilitation Act, among the right to lease deposit returned by a housing lessee, within the scope of the right to preferential reimbursement recognized under Article 84(2)1 of the same Act, which does not constitute “right not entered in the list of individual rehabilitation creditors,” where exemption is not granted under Article 84(2)1 of the same Act, even if a housing lessee’s right to claim the return of lease deposit from the proceeds from the proceeds of realizing the leased house was determined and conclusive and the individual rehabilitation procedure

2. Although the reasoning of the court below is somewhat inappropriate, the decision of the court below is just in its conclusion that with respect to the Defendant’s claim for the return of the lease deposit against a housing lessee within the scope of the Plaintiff’s right of preferential reimbursement not exercised by the Defendant in the individual rehabilitation procedure against the said lessor, the decision of the court below cannot exclude the enforcement force of the final and conclusive judgment on the Defendant’s claim for the return of the lease deposit to the extent that such decision does not affect the effect of immunity. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)