In a case where Gap submitted a draft repayment plan after the commencement order of individual rehabilitation procedure was issued, and the first instance court abolished the individual rehabilitation procedure, and the court below maintained it as it is, the case reversing the order of the court below on the ground that, in light of the empirical rule, the remaining security deposit, which remains after deducting the difference in arrears, was returned to Gap around that time, unless there were special circumstances, if the termination date of the lease contract for the house had already arrived at two years prior to the date of application for individual rehabilitation and the closure of the lease contract was closed, barring special circumstances. In such a case, the court below reversed the order of the court below on the ground that the above security deposit was still used for living expenses, etc. after examining whether the lease contract deposit was returned at the time of closure, whether there was overdue difference

Article 614(1) of the Debtor Rehabilitation and Bankruptcy Act

Re-appellant

Suwon District Court Order 2008Ra303 dated November 18, 2009

The order of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

Article 614(1) of the Debtor Rehabilitation and Bankruptcy Act provides, “The court shall decide to authorize the repayment plan when the requirements falling under any of the following subparagraphs are satisfied, that “the repayment plan conforms to the provisions of Acts without stating any objection by any individual rehabilitation creditor or any rehabilitation commissioner, the repayment plan is to be fair, equitable, implementable, the expenses, fees and other amounts to be paid before authorization of the repayment plan is granted, and the total repayment amount for individual rehabilitation claims appraised as of the base date on which the decision to authorize the repayment plan is made is not less than the total amount to be paid when the debtor goes bankrupt (Provided, That the same shall not apply where the creditor consents thereto): Provided, That the same shall not apply where the order to revise the repayment plan is not complied with pursuant to Article 610(3) of the above Act.”

On August 27, 2007, the court below decided 10, 200, 200, 300, 200, 300, 400, 400, 200, 200, 200, 300, 40, 200, 200, 40, 200, 200, 300, 40, 200, 200, 30, 40, 40, 200, 20, 40, 200, 30, 40, 200, 5, 200, 30, 5, 000, 20, 30, 5,000, 3,000, 4,000, 1,000, 3,00,00,00,00,00,00.

However, the above judgment of the court below is hard to accept.

According to the records, prior to the decision of the court of first instance, the Korea Housing Finance Corporation has raised an objection to the amount of the deposit of the instant ○○ Housing (dong number omitted). However, prior to the decision of the court of first instance, the rehabilitation creditor's objection to the deposit of the instant ○ Housing (dong number omitted) was not raised by the rehabilitation creditor, and the Re-Appellant's ground for appeal (record 121 hereinafter "record") stated the lease agreement of the said ○ Housing (dong number omitted) and the ○ Housing (dong number omitted) at the same time as the above ○ Housing (dong number omitted), and claimed that the termination period of the lease agreement of the above ○ Housing (dong number omitted) was 2005. Further, the Re-Appellant had already closed the business in around 205 with the continued operation in the above written ground for appeal and had no objection to the provisional execution on July 207, 2007.

Therefore, the termination date of the lease contract for the instant ○○ Housing (Dongho Lake omitted) has already arrived at two years before the date of the application for individual rehabilitation, and if the business was closed as alleged by the re-appellant, the remaining deposit after deducting the overdue loan was returned to the re-appellant at that time, barring special circumstances. In such a case, the court below should have deliberated on whether the lease contract deposit for the instant ○○ Housing (Dongho Lake omitted) was returned at the time of closure of business, whether there was overdue loan deducted from the deposit, and whether the returned deposit was used for living expenses, etc. after the application for individual rehabilitation, and determined whether the said deposit was still property of the re-appellant.

Nevertheless, the court below's decision that there is a reason to authorize the repayment plan to the re-appellant is erroneous by failing to exhaust all necessary deliberations and by violating the law of evidence (the court below's decision is stated only in the decision of discontinuation of individual rehabilitation procedure of this case as the first instance court. However, considering the fact that the re-appellant was unable to receive the decision of non-authorization of the repayment plan of this case, which is the basis of the above discontinuation decision, and the contents of the reason for appeal and the reasons for the decision of discontinuation of individual rehabilitation procedure of this case, the re-appellant was all subject to appeal. The court below also decided that the above repayment plan of this case is non-authorization decision and the subsequent appeal against the non-authorization decision of the repayment plan of this case is legitimate, on the premise that

The grounds for reappeal pointing this out are justified.

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 on the bench.

Justices Jeon Soo-ahn (Presiding Justice)