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(영문) 서울동부지방법원 2016.07.05 2016가단784
선불금반환
Text

1. Defendant C shall pay 25,00,000 won to the Plaintiff and 20% per annum from January 25, 2006 to the day of full payment.

Reasons

1. In full view of the purport of the entire pleadings in Gap evidence No. 1 as to the cause of the claim, the plaintiff was sentenced to a judgment by service by public notice (Seoul Eastern District Court Decision 2005Da45637) against the defendants on March 31, 2006 that "the defendants jointly and severally pay to the plaintiff 25 million won and interest rate of 20% per annum from January 25, 2006 to the day of full payment" (Seoul East Eastern District Court Decision 2005Da45637). The judgment can be acknowledged that the judgment became final and conclusive around that time.

Therefore, the Defendants are obliged to pay the above judgment amount to the Plaintiff unless there are special circumstances.

2. Defendant B’s defense asserts that the above judgment amount was exempted. Defendant B’s defense, except for dividends under the bankruptcy procedure, is exempt from all liability to the bankruptcy creditors (main sentence of Article 566 of the Debtor Rehabilitation and Bankruptcy Act). According to each of the evidence Nos. 1 and 2, Defendant B filed an application for bankruptcy and exemption from liability around 2006, and as a result, Defendant B received exemption from liability on May 31, 2007 (Seoul Central District Court Order 2006Da45390). Thus, Defendant B’s defense is reasonable.

Although a debtor is not exempt from liability for any claim that is not entered in the list of creditors in bad faith (Article 566 proviso 7 of the Debtor Rehabilitation and Bankruptcy Act), the fact that the debtor filed an application for bankruptcy and exemption and omitted the plaintiff's claim in the list of creditors is not disputed between the parties. However, "claim that is not entered in the list of creditors in bad faith by the debtor" means a case where the debtor knows the existence of the obligation against the bankruptcy creditor before immunity is granted and fails to enter it in the list of creditors. Thus, if the debtor was unaware of the existence of the obligation, even if he was negligent, it does not constitute non-exempt claim as prescribed in the above provision of the Act.

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