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창원지방법원 2016.05.20 2015가단19714

대여금

Text

1. The Selection C shall pay to the Plaintiff KRW 18,00,000 and 5% per annum from November 27, 2015 to May 20, 2016.

Reasons

1. Basic facts

A. Joint and several sureties’s lending date of lending Nos. 10,00,000 to the Defendants of the network D (hereinafter “the network”) and joint and several sureties KRW 50,000 on May 15, 2003: (a) Defendant B (2) KRW 8,000,000 on May 15, 2003; (b) KRW 4,000 on November 28, 2005; (c) KRW 88,000,000 on a sum of KRW 10,000 on November 28, 2005; and (d) Defendant B loaned KRW 88,00,000 on a four-time basis between year 203 and year 205 to Defendant B as follows; and (d) Defendant B provided joint and several sureties with respect to the loan ①.

B. A deceased’s death and inheritance-related deceased on December 5, 2006. Of the deceased’s property, the claims on loans to the Appointor C were inherited solely by the Plaintiff following the agreement on the division of inherited property.

[Reasons for Recognition] Facts without dispute, entry into Gap's 1 through 5 (including branch numbers if there are serial numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination

A. According to the above facts of recognition as to the cause of the claim, the selected person C is the principal debtor, and the defendant B is the joint and several sureties, and each of the loans is the joint and several sureties.

B. The Defendants’ defenses 1) The Defendants asserted that they did not have any obligation to repay the above loans, since they received a ruling of bankruptcy and exemption from liability from the court. The Plaintiff omitted the Defendants’ debt to the deceased in the creditor list even if they were aware of the Plaintiff’s debt, and thus, the instant claim does not constitute the subject of exemption from liability.

B) “Claims in bad faith not entered in the list of creditors” under Article 566 subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act refers to cases where an obligor is aware of the existence of a claim prior to the decision of immunity and fails to enter it in the list of creditors. If the existence of a claim was known, even if the obligor did not enter it in the list of creditors by negligence, it constitutes non-exempt claims under the said provision (see, e.g., Supreme Court Decision 2010