The requirements to dismiss the debtor's application for commencement of individual rehabilitation procedure on the ground that the debtor's application for commencement of individual rehabilitation procedure constitutes "when the application is not bona fide" as provided by Article 595 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act, and in a case where the debtor respondeds to the court's request for materials correction, but the contents do not meet the court's requirements, whether the court may immediately dismiss the application for individual rehabilitation without providing the court's opportunity for correction such as additional

Articles 591 and 595 Subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act

Supreme Court Order 2011Ma825 Decided June 21, 2011

The debtor

Gwangju District Court Order 2013Ra25 dated April 2, 2013

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.

1. According to the reasoning of the order of the court below, even if the re-appellant took the fourth-year course at the time when the application for commencement of the individual rehabilitation procedure of this case was filed for the second-year period at the time of the application for commencement of the individual rehabilitation procedure of this case, he may open or become a salary for another hospital after 2015, even if the re-appellant took the fourth-year course at the time of the application for qualification of the medical specialist, and it is difficult to conclude that the monthly average income of the re-appellant during the three-year period after 2015 cannot exceed the first-year average income of the previous one. Thus, even if it is not practically impossible to submit a draft repayment plan with the content of repayment of 10% principal, the court below ordered the first instance court to revise the repayment plan with the purport that the re-appellant would submit a draft repayment plan with the content of repayment of the principal 100%, and thus, the application of this case violates the procedure for delay of the application of this case without good faith or good faith.

2. However, we cannot accept the judgment of the court below for the following reasons.

A. In order to dismiss an application for individual rehabilitation procedure commencement filed by a debtor on the ground that the application constitutes “when the application is not bona fide,” under Article 595 subparag. 7 of the Act, the circumstance should be acknowledged that the debtor applied for individual rehabilitation procedure commencement for unjust purposes, such as where the debtor committed procedural errors corresponding to subparagraphs 1 through 5 of the same Article, or where the debtor applied for the commencement of individual rehabilitation procedure for the purpose of only

In addition, if it is necessary to supplement data submitted by the debtor, the court or any rehabilitation commissioner may request the debtor to report on his/her income and expenditure of money and other property affairs at any time, and if deemed necessary, he/she may inspect the status of property, request any correction, and take other appropriate measures (Article 591 of the Act). If the debtor complies with the court’s request for correction, barring any special circumstance, it is not allowed to immediately dismiss the application without providing the court with an opportunity to correct it through additional correction, examination, etc. (see Supreme Court Order 201Ma825, Jun. 21, 2011, etc.).

B. According to the records, the Re-Appellant submitted the repayment plan to repay the amount equivalent to 35% of the principal amount of household income as KRW 114,90,000 per month in which monthly average monthly income of KRW 4,09,086 for the next 60 months was deducted from monthly average income of KRW 2,199,086 at the time of application for commencement of individual rehabilitation procedure. The first instance court issued an order to prepare and submit a repayment plan to adjust household income for each period based on the income to increase in the future, and to adjust the repayment plan to pay the principal amount of KRW 100,000 for the following reasons: the Re-Appellant did not submit the revised repayment plan to the Re-Appellant on November 16, 2012; the Re-Appellant did not request the repayment plan to rectify the total amount of KRW 1,90,000 for the reasons that it did not meet the repayment plan as KRW 1,50,000 for the first time.

C. Examining the above facts in light of the legal principles as seen earlier, if the first instance court submitted a revised draft of the repayment plan with the purport that the amount equivalent to 56.5% of the principal amount shall be repaid in accordance with the purport of Article 595 subparag. 7 of the Act and responded to the order, the application for commencement of the individual rehabilitation procedure in this case cannot be concluded to constitute “when the application for commencement of the individual rehabilitation procedure in this case is not bona fide or delays the procedure without any justifiable reason” provided by Article 595 subparag. 7 of the Act, with the purport that the second instance court failed to submit a revised draft of the repayment plan with the purport that the amount equivalent to 56.5% of the principal amount shall be repaid to the maximum extent possible.

3. Nevertheless, solely based on its stated reasoning, the lower court affirmed the first instance court’s dismissal of the instant application, and thus, it erred by misapprehending the legal doctrine on the grounds for dismissing the application for individual rehabilitation procedure commencement application as stipulated in Article 595 subparag. 7 of the Act, thereby adversely affecting the conclusion

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.

Justices Kim Shin (Presiding Justice)