Mo Maritime Fire Insurance Co., Ltd. (Law Firm Bain, Attorney Kim Jong-Un, Counsel for defendant-appellant)

Defendant (Law Firm Associate, Attorney Dog-sik, Counsel for defendant-appellant)

March 19, 2013

Seoul Northern District Court Decision 201Gahap8229 Decided December 15, 2011

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 116,854,740 won with 5% interest per annum from October 2, 2002 to September 16, 2004, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Basic facts

A. At around 18:30 on August 2, 2001, the Defendant: (a) driven a rocketing (vehicle number omitted) car without the driver’s license of the vehicle (hereinafter “Defendant vehicle”); (b) neglected to perform the front line of the Defendant’s vehicle while driving the vehicle in front of the Dogwon Village at the upper end of the Cheongju-gu, Security Council at the speed of 40 km away from the front line of the back line to the speed of 40km; (c) neglected to perform the front line of the Defendant’s vehicle at the speed of 12 weeks; and (d) caused the Nonparty’s injury, such as spawn and dar damage, etc. to the front line of the right side of the Defendant vehicle and the rear line; and (d) caused the Nonparty to undergo medical treatment for 12 weeks.

B. The defendant's vehicle was non-insurance vehicle, and the plaintiff paid 119,839,830 won for damages to the non-party in accordance with the damage security contract entered into with the non-party. The judgment was finalized on September 16, 2004 by exercising the right to indemnity against the defendant under the Cheongju District Court 2004Kadan3621, and on September 22, 2004, "the defendant paid 119,839,830 won to the plaintiff, and 5% per annum from October 2, 2002 to September 16, 2004, and 20% per annum from the next day to September 2, 2004," and the above judgment was finalized on October 22, 2004.

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Determination on the legitimacy of the instant lawsuit

A. The parties' assertion

1) The Plaintiff asserts that the Defendant sought the payment of the amount of indemnity in order to discontinue the expiration of the extinctive prescription of the claim based on the above final judgment (hereinafter “instant claim for indemnity”).

2) On February 2009, the Defendant filed an application for individual rehabilitation and obtained a decision to authorize the repayment plan according to the individual rehabilitation procedure. However, the Plaintiff’s claim for reimbursement of this case also stated in the list of individual rehabilitation creditors, thus, the Plaintiff’s claim cannot be complied with.

(b) Fact of recognition;

1) On February 20, 2009, the Defendant filed an application for individual rehabilitation with Seoul Central District Court 2009Da11597, and around April 3, 2009, the individual rehabilitation procedure commenced and entered the Plaintiff’s claim for indemnity in the above rehabilitation procedure in the list of individual rehabilitation creditors, and the instant claim for indemnity was finalized as it did not raise any objection within the objection period.

2) The Defendant received a decision to authorize the repayment plan on September 8, 2009, and the Plaintiff received KRW 4,371,020 according to the above repayment plan authorization decision, and up to the date of closing argument in the trial, the Defendant is undergoing repayment according to the repayment plan.

3) The Plaintiff filed the instant lawsuit on September 7, 201, and on September 22, 2011, a duplicate of the instant complaint was served on the Defendant.

[Reasons for Recognition] No dispute exists or obvious facts in this court, Eul's evidence Nos. 4-1 to 7, the purport of the whole pleadings

C. Relevant provisions

The Debtor Rehabilitation and Bankruptcy Act (amended by Act No. 7428, Mar. 31, 2005; effective April 1, 2006; hereinafter “ Debtor Rehabilitation Act”) provides for the following:

Article 603 (1) In any of the following cases, a claim shall become final and conclusive as stated in the list of individual rehabilitation creditors:

1. Where any creditor entered in the list of individual rehabilitation creditors fails to file an application for the final judgment on an individual rehabilitation claim within the objection period provided for in Article 596 (2) 1;

2. Where an application for final judgment on an individual rehabilitation inspection is rejected;

(3) Where confirmed individual rehabilitation claims are entered in the table of individual rehabilitation creditors, such entry shall have the same effect as a final judgment on all of such individual rehabilitation creditors.

(4) When a decision to discontinue individual rehabilitation procedures is confirmed, any individual rehabilitation creditor may perform compulsory execution against the debtor according to the table of individual rehabilitation creditors.

(1) Any individual rehabilitation creditor who has an objection to any content of the list of individual rehabilitation creditors may raise an objection in writing within the objection period provided for in the provisions of Article 596 (2) 1. When the debtor approves the objection, he/she may modify the list of individual rehabilitation creditors after obtaining permission therefor from the court. In this case, the court may choose not to render a decision with respect to the application for the judgment in claim allowance proceedings.

(2) Where an objection is raised against any right in a pending lawsuit at the time individual rehabilitation procedures commence, no separate application for a judgment in claim allowance proceedings shall be filed, and the details of the pending lawsuit shall be changed to a lawsuit in claim allowance proceedings for individual

D. Determination

According to the provisions of each of the above laws, where individual rehabilitation procedures have already commenced, the procedure is prepared to obtain confirmation of claims through the final judgment on the final judgment on the individual rehabilitation claim; the claims entered in the table of individual rehabilitation creditors have the same effect as the final judgment; where the individual rehabilitation procedures continue, repayment may be made according to the procedure; and even if the individual rehabilitation procedures continue, compulsory execution may be made based on the individual rehabilitation table. In light of each of the above provisions and the purport of the final judgment on the individual rehabilitation procedures and the stability of the individual rehabilitation procedures, even if the individual rehabilitation procedures are discontinued, it is impossible to separately file a lawsuit for performance with respect to claims already entered in the individual rehabilitation creditors list, and it is difficult to dispute the existence or scope of claims through the final judgment in the individual rehabilitation procedure. Furthermore, it is improper to re-appeal the same in cases where there is an executive title or final judgment that has already been executory power on the individual rehabilitation creditors, and as long as the individual rehabilitation procedures are in progress, the creditor and the debtor cannot file a lawsuit for performance separately on the same ground as seen earlier.

Therefore, the issue of whether the claim for indemnity of this case, which the Plaintiff filed against the Defendant after a decision to grant immunity was confirmed in the above individual rehabilitation procedure applied by the Defendant, can be asserted as non-exempt claims under the proviso of Article 625(2)5 of the Debtor Rehabilitation Act and brought a lawsuit, etc. is a separate issue. As long as the claim for indemnity of this case is included in the list of individual rehabilitation creditors of the above individual rehabilitation procedure and the above individual rehabilitation procedure is still in progress, the interruption of prescription becomes effective even if the submission of the list of individual rehabilitation creditors under Article 32 Subparag. 3 of the Debtor Rehabilitation Act, the lawsuit of this case against the Plaintiff filed a separate performance lawsuit is unlawful because there is no benefit of lawsuit against the

3. Conclusion

Therefore, the lawsuit of this case is dismissed as it is inappropriate, and the judgment of the court of first instance is unfair with the conclusion different, and it is so revoked and it is so decided as per Disposition.

Judges Lee Sang-sung (Presiding Judge)