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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
The gist of the parties’ assertion was that the Plaintiff lent money to the Defendant several times, but the Defendant prepared and delivered a certificate of loan to the Plaintiff on August 8, 2005 that “to repay KRW 41,150,000 to the end of August 8, 2007.” As such, the Defendant is obliged to pay the above loan and the damages for delay to the Plaintiff.
Since the defendant was declared bankrupt and exempted from immunity, all of the above obligations against the plaintiff were exempted.
The main text of Article 566 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”) provides that an obligor who has been exempted from immunity is exempted from the responsibility for all obligations owed to any bankruptcy creditor, except dividends under the bankruptcy procedure.
The exemption here means that the obligation itself continues to exist, but it is not possible to enforce the performance to the bankrupt debtor.
Therefore, when a decision to grant immunity to a bankrupt debtor becomes final and conclusive, a claim exempted from immunity shall lose the ability to file a lawsuit having ordinary claims (see, e.g., Supreme Court Decision 2015Da28173, Sept. 10, 2015). In addition, the Defendant was declared bankrupt by the Seoul Central District Court Decision 2009Hadan25273, Sept. 10, 201; and around that time, the Defendant may recognize the fact that the decision to grant immunity was final and conclusive on Sept. 8, 201 upon receipt of the decision to grant immunity by the Seoul Central District Court Decision 2009Ha25273, supra. Thus, barring any special circumstance, the instant loan claim claimed by the Plaintiff was arising from “the cause before the declaration of bankruptcy,” and barring any special circumstance, the Plaintiff lost the ability to file a lawsuit that
I would like to say.
Article 566 Subparag. 7 of the Debtor Rehabilitation Act provides that "the obligor shall not be entered in the list of creditors in bad faith" as one of non-exempt claims. In this case, the obligor is not entered in the list of creditors in bad faith.