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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. On July 2007, the Plaintiff filed a lawsuit for the repayment of loans with the Defendant as the other party to the lawsuit. On January 6, 2008, the Plaintiff was sentenced to the Seoul Central District Court Decision 2007Gahap67949, and on January 6, 2008, “the Defendant shall pay to the Plaintiff 454,500,000 won and 20% interest per annum from August 24, 2007 to the day of full payment.”
The defendant paid KRW 21,285,337 out of the debts under the above judgment after the above judgment was pronounced. The plaintiff shall apply it to the part of interest in arrears, and seek payment of the remaining principal amount of KRW 454,50,000 and damages for delay after November 16, 2007 (hereinafter "claim of this case").
2. We examine ex officio the legitimacy of this part of the lawsuit.
A. A. A bankruptcy creditor is prohibited from exercising his/her individual right upon the declaration of bankruptcy and can obtain satisfaction only by participating in the bankruptcy procedure (see Article 424 of the Debtor Rehabilitation Act). As such, filing a lawsuit for the performance of a bankruptcy claim directly by a bankruptcy creditor without resorting to the bankruptcy procedure after the declaration of bankruptcy is unlawful
(Supreme Court Decision 201Da10310 Decided May 26, 201, and Supreme Court Decision 2016Da221887 Decided June 29, 2017, etc. (see, e.g., Supreme Court Decisions 2011Da1038, May 26, 20
On August 26, 2015, the Defendant was declared bankrupt on August 26, 2015 by Suwon District Court 2014Hadan4338, which was before the instant lawsuit, and the procedure is in progress, and there is no dispute over the fact that the examination of exemption is underway under the same court 2014Ma4338, and it is evident that the instant claim sought by the Plaintiff in the instant case was caused before the declaration of bankruptcy.
C. If so, the claim of this case is deemed a bankruptcy claim (Article 423 of the Debtor Rehabilitation and Bankruptcy Act), and in order to exercise the claim of this case which is a bankruptcy claim, it shall be reported to the bankruptcy court, and in order to exercise the claim of this case, it shall be reported to the bankruptcy court, and in accordance with the bankruptcy claim inspection date and