2018Ra276 Declaration of Bankruptcy

○○ (73 - 1)

Gyeonggi-do Armed Forces;

Daegu District Court Order 1828 dated April 18, 2018 at the bottom 1828, 2015

oly 3, 2019

1. To revoke all the decision of the first instance;

2. The case is remanded to the court of first instance.

1. Basic facts

According to the records of this case and the results of the first instance examination, the following facts are recognized:

A. On April 30, 2015, the applicant filed a bankruptcy and application for immunity with the Daegu District Court 2015Hadan1828, 2015 (1828, 1828).

B. On November 9, 2015, the court of the first instance shall supplement the time when payment has become impossible (4. 3) of the statement. ② The date of borrowing or purchasing the creditor’s list, the cause of the purchase, the amount of the first claim, and the guarantor’s column on the creditor’s list. ③ Of the creditors, the number of days (e.g., scattering Kim ○○, ○○, ○○○, ○○○, ○○○○, ○○○○○, among the creditors, shall be changed to the personal creditor’s name if the number of days (e.g., scattering Kim ○, ○○, ○○, ○○, and ○○ Metal is an individual creditor. ④ If each creditor is experienced in seizure, provisional seizure, civil and criminal proceedings, the applicant must submit related data, 6) the applicant’s criminal record inquiry statement, 7) the applicant’s order of correction should supplement all of the creditors’ addresses omitted in the creditor’s list.

22. The time when the payment of the written statement became impossible, the list of creditors, the name of creditors, and the address in the list of creditors were supplemented, and the written statement of criminal records was submitted. However, the data submitted by the applicant was still not properly indicated in the list of creditors, the date of loan or purchase, the accurate name of some of creditors, the list of creditors, and the address of creditors in the list of creditors. On December 23, 2015, the court of first instance ordered the applicant to order the applicant to rectify the address of the creditors whose address is unknown

C. The applicant added creditors omitted on March 10, 2016, and revised the obligee’s name and revised the obligee’s name, and then filed an application for fact-finding as to the obligee’s resident registration number and address, etc., which are unclear creditors. On March 25, 2016 and April 4, 2016, the applicant submitted relevant explanatory materials by adding omitted creditors to the omitted creditors, and filed a correction of the obligee’s name and clerical error.

D. On May 24, 2016, the court of first instance issued an order to rectify the address to verify the obligee’s address ○○○. The applicant corrected the address on June 7, 2016. In addition, the court of first instance rendered an order to rectify the address on September 2017.

26. On March 19, 2018, the applicant issued an order of correction to re-examine the obligees' address, but the applicant does not comply with this order.

E. On April 18, 2018, the court of first instance dismissed a petition for bankruptcy pursuant to Article 309(1)5 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “DRB”) on the ground that the petition for bankruptcy filed by an applicant was not bona fide and thus dismissed, and further dismissed a petition for immunity pursuant to Article 559(1)2 of the same Act on the ground that the petition for bankruptcy filed by an applicant was dismissed.

F. On April 27, 2018, the applicant filed an immediate appeal against the above decision of the court of first instance on April 27, 2018. This court ordered the court of first instance to rectify his/her address on March 19, 2018, and issued an order to correct his/her address on March 19, 2018 (5,00 won) once

B An order to make additional payments to the Bank. However, the applicant does not submit specific data in accordance with the above order of correction.

2. Summary of grounds for appeal;

The applicant asserts that the bankruptcy and exemption system is aimed at returning the debtor facing the failure to go bankrupt to a sound social person due to financial difficulties, so the applicant's decision of the first instance court should be revoked so that the bankruptcy and exemption can be made in light of the applicant's living conditions, economic matters, the current status of liabilities, etc.

3. Issues and determination of the instant case

A. Relevant legal principles

"When an application for bankruptcy is not bona fide," under Article 309 (1) 5 of the Debtor Rehabilitation Act, "when an application for bankruptcy is filed as a ground for dismissing a petition for bankruptcy," refers to a case where a debtor omits any matter to be entered in the application under Article 302 (1) of the Debtor Rehabilitation Act, or fails to submit attached documents under Article 302 (2) of the Debtor Rehabilitation Act and Article 72 of the Debtor Rehabilitation and Bankruptcy Act, and the debtor fails to comply with the request for revision without justifiable grounds despite the court urged correction. If the matter ordered by the court to be corrected is related to the matter that is not legally required, it is not permitted to dismiss the petition for bankruptcy on the ground that the debtor fails to perform such matter

Even if the court failed to meet its requirements, it is not allowed to immediately dismiss the petition for bankruptcy without providing the court with an opportunity to correct the request for additional correction or examination (see Supreme Court Order 201Ma958, Jul. 28, 201, etc.).

B. Key issue of the instant case

The court of first instance shall serve upon the address of the creditor recorded in the list of creditors submitted by the applicant.

The mail issued an order of correction on the ground that the mail was returned to "the unknown address"; however, when the petitioner fails to faithfully implement the order of correction and the petition for bankruptcy filed by the petitioner is not bona fide, the petition for bankruptcy was dismissed pursuant to Article 309 (1) 5 of the Debtor Rehabilitation Act; accordingly, the application for immunity was dismissed pursuant to Article 559 (1) 2 of the same Act.

Therefore, the key issue of the instant case is whether the instant petition for bankruptcy constitutes “when the petition for bankruptcy is not bona fide” as the grounds for dismissal under Article 309(1)5 of the Debtor Rehabilitation Act. According to the relevant legal doctrine, the case is whether the filing of the petition for bankruptcy falls under “when the petition for bankruptcy is not bona fide.” According to the pertinent legal doctrine, the submission of the accompanying documents under Article 302(2) of the Debtor Rehabilitation and Bankruptcy Act and Article 72 of the Debtor Rehabilitation and Bankruptcy Act is not “when the debtor fails to comply with the order of correction of the creditor’s address among the creditors’ list submitted by the applicant,” and the case constitutes “where the debtor fails to comply

C. Determination

In full view of the facts acknowledged earlier and the following circumstances, it cannot be readily concluded that the court of first instance ordered correction (the address available to creditors) falls under the “list of creditors” among the documents attached to Article 302(2) of the Debtor Rehabilitation Act. Moreover, since the applicant fulfilled the order of correction of address of the court of first instance over several times, it cannot be deemed that the applicant’s act was not complied with without justifiable grounds. Thus, the first instance court’s ruling dismissing the petition of this case on the ground that the petition of this case was not bona fide and thus, dismissed the petition of this case, and thus, the court’s ruling dismissing the petition of this case on the ground that it is unfair, and thus, should be revoked. (i) Whether the “able address” is the essential entry in the list of creditors.

Article 340 of the former Bankruptcy Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter referred to as the "former Bankruptcy Act") provides that "The bankrupt shall submit a list of creditors stating the name, address, etc. of bankruptcy creditors at the time of filing an application for immunity." However, Article 99 of the former Bankruptcy Act provides that "if there is no separate provision concerning bankruptcy proceedings, the Civil Procedure Act and the Civil Execution Act shall apply mutatis mutandis." Article 104 provides that "An application, statement, and appeal concerning bankruptcy proceedings may be filed in writing or orally." Article 104 provides that "An application, statement, and appeal concerning bankruptcy proceedings may be filed in writing or orally." It does not provide for the submission of a creditor's address in a petition for bankruptcy unlike the application for exemption, and in practice, a list of creditors stating the address, etc. as documents attached to the application form determined by the court according to the written complaint, etc.

Article 302(2)1 of the Debtor Rehabilitation Act provides that “A list of creditors shall be attached when filing an application for bankruptcy as provided by Article 302(1) of the same Act, but it does not provide for “A list of creditors’ addresses”, but only provides for the list of creditors in the list of creditors according to the documents attached to the written application form set by the court. On the other hand, Article 589(2)1 of the Debtor Rehabilitation Act provides that “A list of creditors (the name and address of creditors and the cause of claims and the amount of claims) with the accompanying documents when submitting the application for commencement of individual rehabilitation procedures shall be included in the list of creditors,” and Article 147(2)1(a) of the Debtor Rehabilitation Act provides that “a list of creditors who are to be attached to the application for bankruptcy in the course of rehabilitation procedures shall be included in the list of creditors who are to be attached to the application for bankruptcy.” In light of the legislative history and regulatory form, it is difficult to readily conclude that the creditor’s address and address are essential matters to be attached to the creditor.

From this point of view, it would not be easily determined that the address available to the creditors list was not revised, and that the documents attached to the Debtor Rehabilitation Act and the Regulations were not submitted.

2) The purport of the publication system and the individual bankruptcy system under the Debtor Rehabilitation Act

○ If it is difficult to identify the place to be served when being served under the Debtor Rehabilitation Act, or if the progress of the insolvency procedure is likely to be considerably delayed, the delivery may be substituted by a public notice (Article 10 of the Debtor Rehabilitation Act, Article 7 of the Debtor Rehabilitation and Bankruptcy Act).

Therefore, in a case where an applicant’s address was corrected several times according to the court’s order of correction, and thus, the address could no longer be identified and thus, the court shall determine whether to declare the bankruptcy in lieu of service by means of a public notice under the Debtor Rehabilitation Act. If the bankruptcy is declared, the bankruptcy creditor shall report the address of the obligee within the reporting period (Article 447 of the Debtor Rehabilitation and Bankruptcy Act, Article 73(1)1 of the Debtor Rehabilitation and Bankruptcy Act), and the bankruptcy claim can be confirmed in the course of investigating and raising objections against the reported claim (Articles 312(1), 452 through 458 of the Debtor Rehabilitation Act).

In practice, there are many cases where a debtor fails to properly state the creditor's address in the creditor list because it is difficult to identify the creditor's resident registration number or address, and in this case, delivery is impossible. Considering that the legislative purpose, bankruptcy procedure, and rehabilitation procedure of the Debtor Rehabilitation Act to promote efficient rehabilitation of the debtor facing failure due to financial difficulties are different in terms of the legal status and the degree of participation of the creditors in the procedure, in the case of individual bankruptcy, where the debtor has made considerable efforts to inquire about the communications company or to order the submission of a financial institution, but it is difficult to find the creditor's address or personal information easily, the bankruptcy petition should not be readily concluded where it is not bona fide due to the failure to correct due to the service address, and rather, the procedure should be carried out smoothly by actively utilizing the aforementioned announcement system.

4. Conclusion

Since the appeal of this case is well-grounded, the court of first instance has revoked all the decision of the court of first instance and rendered the appeal of this case.

The case shall be remanded to the court, and it shall be decided as per Disposition.

June 3, 2019

Judges Park Jae-chul et al.

Judges Cho Jong-hee

Judges Lee Sung-sung