(영문) 광주지방법원 2019.01.10 2016나5364 | 리걸엔진

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(영문) 광주지방법원 2019.01.10 2016나5364

채무부존재확인

Text

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. On July 24, 2008, the Defendant filed a lawsuit against the Plaintiff with the Gwangju District Court (2008da35253) that “The Defendant (the Plaintiff of this case) shall pay 70 million won to the Plaintiff (the Defendant of this case) and 6% per annum from January 14, 2008 to May 16, 2008, and 20% per annum from the next day to the day of full payment” (hereinafter “instant judgment”). The judgment of this case became final and conclusive as it is.

B. On April 19, 2010, the Plaintiff received a decision to discontinue the bankruptcy on July 18, 2011 by filing a petition for immunity with the Gwangju District Court as 2010, 1835, and filed a petition for bankruptcy with the 2010Hadan1836. On August 19, 2011, the Plaintiff became final and conclusive upon receipt of the decision to grant immunity (hereinafter “instant decision to grant immunity”).

The Plaintiff did not enter claims based on the Defendant’s judgment at the time of the application for immunity (hereinafter “instant claims”) in the list of creditors.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. The assertion and judgment

A. (1) The Plaintiff was granted immunity on August 19, 201, and the decision on immunity of this case became final and conclusive as it is.

Although the Plaintiff did not enter the instant claim in the list of creditors in the process of obtaining the decision to grant immunity of the instant case, the Plaintiff did not enter by negligence the existence of the instant claim in the list of creditors and did not enter it in the list of creditors due to negligence. Thus, the instant claim does not constitute “a claim which is not entered in the list of creditors in bad faith by an obligor” under Article 566 subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”).

Therefore, since the effect of the decision on immunity of this case is limited to the claim of this case, compulsory execution based on the final judgment of this case should be denied.

(2) The Plaintiff, despite being aware of the existence of the instant claim, did not enter in the list of creditors.

참조조문

-채무자 회생 및 파산에 관한 법률 제566조 제7호

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