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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. On April 30, 2007, the Plaintiff borrowed KRW 100 million from the Defendant as the maturity date on April 2008 (hereinafter “instant loan claim”), and at the time, C jointly and severally guaranteed the Plaintiff’s obligation.
The Plaintiff applied for bankruptcy and immunity as the Suwon District Court 2013Hadan5102 and 2013Ma5102, and was granted immunity on September 2, 2014, and the above immunity became final and conclusive as it is.
However, the claim of this case was omitted in the list of creditors at that time.
The Defendant filed a payment order against the Plaintiff et al. on May 12, 2016 with respect to the instant claim and received a payment order that “the Plaintiff and C (debtors) shall jointly and severally pay KRW 100 million and delay damages to the Defendant (creditors).” The said payment order became final and conclusive as it is.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1 and the purport of the whole pleadings
2. Determination
A. The gist of the Plaintiff’s assertion is not the omission of the instant claim in bad faith in the creditor list at the time when the Plaintiff was granted immunity, and thus, the effect of immunity extends to the instant claim.
B. (1) Determination (1) Article 566 subparagraph 7 of the Debtor Rehabilitation and Bankruptcy Act refers to a case where an obligor is aware of the existence of an obligation against a bankruptcy creditor before immunity is granted, and the obligor fails to enter the same in the list of creditors. Thus, if the obligor was unaware of the existence of an obligation, even if he was negligent in not knowing the existence of the obligation, it does not constitute a non-exempt claim under the above provision, but if the obligor was aware of the existence of an obligation, even if he did not enter it in the list of creditors by negligence, it constitutes a non-exempt claim under the above provision, even if the obligor
(See Supreme Court Decision 2010Da49083 Decided October 14, 2010, etc.). (2)