Main Issues
[1] The meaning of "claim not entered in the list of creditors in bad faith" under Article 566 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act, and the standard for determining whether an obligor has bad faith
[2] The case reversing the judgment of the court below which held that Eul's claim for indemnity omitted in the list of creditors does not constitute non-exempt claim under Article 566 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act, on the ground that in light of all circumstances, Gap's failure to enter Eul's claim for indemnity in the list of creditors by negligence in the list of creditors, and it cannot be viewed as a ground for finding Gap's failure to know the existence of Eul's claim for indemnity amount
Summary of Judgment
[1] "Claims that are not entered in the list of creditors in bad faith" under Article 566 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act refers to cases where a debtor is aware of the existence of an obligation against a bankruptcy creditor prior to immunity, and thus, if the debtor was unaware of the existence of an obligation, it does not constitute non-exempt claims under the above Article 566 of the Act even if he was negligent in not knowing the existence of the obligation, but if the debtor was negligent in not aware of the existence of the obligation, it constitutes a non-exempt claim under the above Article 566 of the Act even if he/she did not enter it in the list of creditors by negligence. However, if the debtor knew of the existence of an obligation, the ground for excluding a claim that is not entered in the list of creditors, if there is a creditor not entered in the list of creditors, he/she would be deprived of the opportunity to raise an objection to the application for immunity within the scope of immunity procedure, and accordingly, it should not be determined by taking into account the objective verification of the grounds for non-permission of the obligor's obligation and the obligor's intent to protect the obligor's obligee's.
[2] The case reversing the judgment of the court below which held that Eul's claim for indemnity omitted in the list of creditors does not constitute non-exempt claim under Article 566 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act, on the ground that in light of all circumstances, Gap's failure to enter Eul's claim for indemnity in the list of creditors by negligence in the list of creditors, and it cannot be viewed as a ground for finding Gap's failure to know the existence of Eul's claim for indemnity.
[Reference Provisions]
[1] Article 566 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act / [2] Article 566 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act
Reference Cases
[1] Supreme Court Decision 2005Da76500 Decided January 11, 2007 (Gong2007Sang, 284) Supreme Court Order 2009Ma225 Decided March 30, 2009
Plaintiff-Appellant
Korea Credit Guarantee Fund (Law Firm Shin & Yang, Attorney Park Jong-soo, Counsel for defendant-appellant)
Defendant-Appellee
Defendant 1 and one other (Attorney Choi Dong-sik, Counsel for the defendant-appellant)
Judgment of the lower court
Seoul Central District Court Decision 2009Na43255 Decided May 28, 2010
Text
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.
Reasons
We examine the grounds of appeal.
Article 56 subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Act”) provides that “Claims that are not entered in the list of creditors in bad faith by an obligor are not entered in the list of creditors despite being aware of the existence of an obligation to a bankruptcy creditor before immunity is granted.” Thus, when an obligor was unaware of the existence of an obligation, even if he was negligent in not knowing the existence of the obligation, it does not constitute non-exempt claims as prescribed by the aforementioned provisions (see Supreme Court Decision 2005Da76500, Jan. 11, 2007). However, even if the obligor was aware of the existence of an obligation by negligence, it constitutes non-exempt claims as prescribed by the above legal provision, even if the obligor did not enter the list of creditors in the list of creditors. The grounds for excluding claims that are not entered in the list of creditors are excluded from the list of creditors, the obligee is deprived of the opportunity to file an objection against the obligor within the procedure for immunity and whether the obligor did not have any objective opportunity to verify the obligor’s obligation without considering the obligor’s objective reasons for exemption.
According to the reasoning of the judgment of the court of first instance cited by the court below, the court below acknowledged the following facts: (a) the plaintiff entered into a credit guarantee agreement on three occasions with Daun Co., Ltd. (hereinafter "non-party Co., Ltd.") and jointly guaranteed obligations pursuant to the above credit guarantee agreement against the plaintiff of non-party Co., Ltd.; (b) the non-party Co., Ltd provided credit guarantee certificates issued by the plaintiff to the national bank and the new bank; and (c) the non-party Co., Ltd. received loans from the above bank from the above bank; (d) on February 24, 2006, the plaintiff did not receive 348,624,122, and (e) paid 36,74,108 won to the new bank on May 4, 2006 to the non-party Co., Ltd. (hereinafter "non-party Co. 2, Ltd."), and (e) obtained the judgment of the Seoul Central Co. 2, 2075's claim for reimbursement against the non-party Co.
Based on the above facts, the court below held that, in the case where Nonparty 2 did not enter the Plaintiff’s claim in the Plaintiff’s list and did not have the opportunity for the Plaintiff to participate in the bankruptcy and exemption procedure, but in this case where Nonparty 2 did not have any reason for refusing to grant any specific exemption, it is difficult to find any particular reason to deem that Nonparty 2 entered the Plaintiff’s claim in the above bank in bad faith without stating the obligation for indemnity against the Plaintiff, and it is difficult to see that it is difficult for Nonparty 2 intentionally omitted the Plaintiff’s claim from the Plaintiff’s list of creditors. Thus, the court below held that the Plaintiff’s claim for indemnity does not constitute non-exempt claim under Article 566 subparag. 7 of the Act, and therefore, it cannot exercise the right to revoke the fraudulent act by making it a preserved claim.
However, according to the records, as the mother of the non-party 3, who is the representative director of the non-party company, the non-party 2 is registered as a director in the non-party company's corporate register. The non-party 1, his husband, the non-party 3, and the defendant 2 joint and several liability for indemnity against the plaintiff of the non-party company. However, on November 8, 2005, the non-party 2 sold the real estate owned by the non-party 1 to the non-party 4 in the non-party 2, the non-party 2, who was the living together with the non-party 1, the day before the completion of the registration of ownership transfer. The plaintiff filed a lawsuit seeking the revocation of fraudulent act against the non-party company, the non-party 1, 2, and 3, and the non-party 2, who was the non-party 2's principal of the complaint of the above civil lawsuit (hereinafter "the copy of the complaint of this case") and the plaintiff's new statement or the record were delivered.
In light of the above status in the non-party 2, status in the non-party 1 and 3, status relationship with the non-party 1 and the contents of the duplicate of the complaint of this case, as well as the fact that the notice of the date of pleading, etc. was served several times in the above civil procedure, and that the non-party 2 appears to have prepared an application for bankruptcy and immunity of this case based on the confirmation of the balance of debt from the plaintiff, it is reasonable to deem that the non-party 2 was aware of the existence of the obligation
As seen above, the circumstances presented by the court below can be the grounds to deem that Nonparty 2 did not state the obligation of indemnity against the Plaintiff in the creditor list by negligence in the creditor list, and it cannot be said that Nonparty 2 is the grounds to recognize that Nonparty 2 was unaware of the existence of the Plaintiff’s claim of indemnity. Thus, it cannot be readily concluded that the Plaintiff’s claim of indemnity amount does not constitute non-exempt claim under Article 566 subparag. 7 of the Act.
In addition, the court below judged that it is difficult for Nonparty 2, the debtor, to set up obligations against the national bank and the new bank without stating the obligation for reimbursement against the plaintiff as above. However, at the time of Nonparty 2's bankruptcy and exemption application, the claims of the above bank had already been extinguished by the plaintiff's subrogation and it is unlikely that they would actively participate in the exemption procedure as the creditor. On the other hand, when considering that before Nonparty 2's bankruptcy and exemption application for exemption, the plaintiff asserted that the act of disposal of assets against Nonparty 1, who is jointly and severally liable with the non-party 2, against the non-party 2, was a fraudulent act and brought a lawsuit seeking revocation of fraudulent act, it is difficult to conclude that the plaintiff's act of disposal of assets against the non-party 2, who is jointly and severally liable for reimbursement, was a fraudulent act. If the plaintiff participated in the exemption procedure as the creditor, and becomes aware of the real estate disposal act of this case by the non-party 2, the plaintiff would be disadvantageous to the non-party 2 in determining whether to grant exemption.
Nevertheless, the court below erred by misapprehending the legal principles as to Article 566 subparag. 7 of the Act, and failing to conduct a necessary hearing, which affected the conclusion of the judgment, which concluded that the plaintiff's claim for indemnity omitted in the above list of creditors solely based on the facts stated in its reasoning does not constitute non-exempt claim under Article 566 subparag. 7 of the Act.
The plaintiff's ground of appeal pointing this out is with merit.
Therefore, the judgment 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 Yang Chang-soo (Presiding Justice)