[1] In a case where an immediate appeal is filed against a judgment on an application for commencement of individual rehabilitation procedures, the standard time to determine whether the requirements for commencement of individual rehabilitation procedures are satisfied (=the time of a final appeal decision)

[2] Requirements to dismiss the debtor's application for commencement of individual rehabilitation procedure on the ground that such application constitutes "when the application is not bona fide" under Article 595 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act

[3] The case reversing the order of the court below that dismissed the application for commencement of individual rehabilitation procedure on the ground that the debtor's application for commencement of individual rehabilitation procedure constitutes "when the application is not bona fide" in itself even though there is no change of circumstances after three times of the application for commencement of individual rehabilitation procedure had been dismissed, where the debtor dismissed the application for commencement of individual rehabilitation procedure on the ground that the application for commencement of individual rehabilitation procedure itself constitutes "when the application is not bona fide"

[1] In principle, whether the requirements for commencement of individual rehabilitation procedures are met shall be determined at the time of application. However, in a case where an immediate appeal is filed against a trial on application for commencement, it shall be determined at the time of the decision of the appellate court in light of the nature of the appellate trial

[2] In order to dismiss an application for individual rehabilitation procedure commencement filed by a debtor on the ground that the application constitutes “when the application is not bona fide,” as stipulated in Article 595 subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act, the court must acknowledge the circumstances that the debtor applied for individual rehabilitation procedure commencement for unjust purposes, such as procedural errors corresponding to subparagraphs 1 through 5 of the same Article, or the debtor’s effect on the progress of individual rehabilitation procedure.

[3] The case reversing the order of the court below that dismissed the application for the commencement of individual rehabilitation procedures on the ground that the debtor's application for the commencement of individual rehabilitation procedures constitutes "when the application is not bona fide" in itself in the absence of any special change in circumstances after the debtor filed an application for the commencement of individual rehabilitation procedures three times, but the application was dismissed on the ground that the application for the commencement of individual rehabilitation procedures itself constitutes "when the application is not bona fide", the case reversed the order of the court below on the ground that the debtor's application for the commencement of individual rehabilitation procedures was dismissed on the ground that the debtor's application for the commencement of individual rehabilitation procedures does not dispute the rejection of the application for the dismissal of the application for the commencement of individual rehabilitation procedures in the absence of any special change in circumstances.

[1] Articles 595 and 598 (1) of the Debtor Rehabilitation and Bankruptcy Act / [2] Article 595 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act / [3] Article 595 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act

[1] Supreme Court Order 2009Ma1137 dated December 24, 2009 (Gong2010Sang, 120)

[Judgment of the court below]

Jeju District Court Order 2010Ra88 dated January 14, 2011

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

The grounds of reappeal are examined.

In principle, whether the requirements for commencement of individual rehabilitation procedures are satisfied shall be determined at the time of application for commencement. However, in a case where an immediate appeal is filed against a trial on the application for commencement of individual rehabilitation procedures, it shall be determined at the time of the appellate trial’s decision in light of the core nature of the appellate trial (see Supreme Court Order 2009Ma1137, Dec. 24, 2009). Meanwhile, in order for a court to dismiss an application for commencement of individual rehabilitation procedures of a debtor on the ground that it constitutes “when the application is not bona fide,” as provided in Article 595 subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Act”), it shall be recognized that the debtor committed procedural errors corresponding to subparagraphs 1 through 5 of the same Article, or the debtor applied for commencement of individual rehabilitation procedures for unjust purposes, such as the debtor’s only aim at the progress

According to the reasoning of the order of the court below, the court below maintained the first instance court's dismissal of the application for commencement of individual rehabilitation procedure of this case on the ground that the re-appellant's application for commencement of individual rehabilitation procedure of this case constitutes a case where the application of this case is not bona fide, even though the re-appellant applied for commencement of individual rehabilitation procedure of this case three times more but it has been dismissed due to abuse of individual rehabilitation procedure and interference with creditors

According to the records, the re-appellant filed an application for commencement of individual rehabilitation in 2006 and approved the repayment plan, but found out that part of the benefits accumulated in seizure was not incorporated into the rehabilitation foundation, and the individual rehabilitation procedure was abolished, and it was dismissed on the ground that the application was filed for commencement of individual rehabilitation procedure more than three times thereafter, but the application was dismissed on the ground that the application was not bona fide. However, in light of the following legal principles and the following, it is difficult to conclude that the application of this case constitutes an application for commencement of individual rehabilitation procedure solely on the ground that there are many cases where the debtor would choose re-application rather than an appeal against the decision to dismiss the application for commencement of individual rehabilitation procedure, and the law does not explicitly prohibit re-application pursuant to the law; the law takes priority over the liquidation procedure for the benefit of creditors and the actual rehabilitation of debtors; if the decision to dismiss this case becomes final and conclusive, the re-appellant actually prevents the length of rehabilitation; and if there are changes in circumstances where more than three years have elapsed since the closure of the first individual rehabilitation procedure.

In order for the court below to determine that the application of this case constitutes a case in which the application of this case was not bona fide based on the experience prior to the commencement of individual rehabilitation procedure before the re-appellant, the court below dismissed the application of this case because the former application of this case was based on the circumstance where the application of this case was dismissed, and the debtor's property status and the degree of recovery of creditors' claims after hearing the circumstances such as the debtor's application of individual rehabilitation procedure commencement and the recovery of creditors' claims. However, the court below rejected the application of this case without reviewing it. Therefore, the court below erred in the misapprehension of the legal principle as to the "other case in which the application is not bona fide," which is the ground for dismissing the application of individual rehabilitation procedure commencement as stipulated in Article 595 subparagraph 7 of the Act,

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 Lee In-bok (Presiding Justice)