2016 Ghana 22805 Confirmation of discharge

A person shall be appointed.

A person shall be appointed.

March 8, 2017

April 5, 2017

1. The lawsuit of this case is dismissed.

2. The costs of lawsuit shall be borne by each person.

On May 13, 2010, the Plaintiff's obligation to the Defendant was confirmed to be exempted from the interest and delayed payment damages on KRW 30,970, 145, 30, 573, 402.

1. Basic facts

On October 27, 2010, the Defendant filed a lawsuit against the Plaintiff seeking reimbursement of damages from 2010da19371, 30, 573, 402 won, and delayed damages, and was sentenced to the Defendant’s winning judgment (hereinafter “instant judgment”), and the said judgment became final and conclusive on November 16, 2010.

The Plaintiff filed bankruptcy and application for immunity with the Daegu District Court No. 2015Hau363, 2015 363, and 2015 363, and became final and conclusive around that time after having been declared bankrupt on January 14, 2016, and became final and conclusive on April 23, 2016 upon having been granted immunity on April 8, 2016. At the time, the Plaintiff’s claim for indemnity against the Defendant under the instant judgment was omitted in the list of creditors.

[Ground for recognition] Unsatisfy, Gap 1 to 4, the purport of the whole pleadings

2. Determination as to whether the Plaintiff’s assertion and lawsuit are legitimate

A. The plaintiff's assertion

The plaintiff is not in bad faith omitted from the defendant's claim in the creditor list in the course of being declared bankrupt and granted immunity, and thus the plaintiff's liability for the debt in this case is exempted from the plaintiff's liability.

B. Determination as to the legitimacy of the instant lawsuit

ex officio, we examine the legitimacy of the instant lawsuit.

In a lawsuit for confirmation, there must be a benefit of confirmation as a requirement for protection of a right. The benefit of confirmation is recognized only when it is the most effective and appropriate means for the defendant to receive a judgment of confirmation against the plaintiff when there is in danger and danger in the plaintiff's rights or legal status and removing such apprehension and danger (see, e.g., Supreme Court Decision 2014Da218511, Dec. 11, 2014).

As seen earlier, the Plaintiff’s obligation to perform the instant obligation became final and conclusive in accordance with the instant judgment, even if a decision of immunity under the Debtor Rehabilitation and Bankruptcy Act became final and conclusive, and the obligor’s obligation is exempted from the obligation to repay the obligation, this does not necessarily mean a ground that the effect of enforcement title with respect to the obligation to be discharged as a matter of course is lost, but it is merely an substantive reason to exclude enforcement title through a claim objection suit (see Supreme Court Order 2013Ma1438, Sept. 16, 2013). Accordingly, even if the Plaintiff was brought into the lawsuit of this case upon confirmation of exemption seeking enforcement of the instant judgment, it does not constitute removal of the Plaintiff’s apprehension and risk to be forced to enforce compulsory execution from the Defendant, by excluding enforcement force of the instant judgment.

Therefore, the lawsuit of this case for which the plaintiff seeks the confirmation of immunity cannot be deemed as the most effective and appropriate means to remove the plaintiff's legal status and risks. Therefore, there is no benefit to confirm.

3. Conclusion

The lawsuit of this case is dismissed as unlawful.

Judges Yu Jae-in