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1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the subsequent order of payment shall be revoked.
Reasons
1. Basic facts
A. On May 17, 2006, the Plaintiff lent a total of KRW 13,000,000 to the Defendant around 2005-206, and received a certificate of cash custody from the Defendant on May 17, 2006.
B. The Defendant was declared bankrupt and granted immunity on July 2, 2009 by the Seoul Central District Court Decision 2009Hadan6536, 2009Da6536, which became final and conclusive on July 22, 2009.
C. Meanwhile, the Defendant did not enter the instant loan obligations in the list of creditors submitted in the above bankruptcy and exemption procedure.
[Ground of recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 1, the purport of the whole pleadings
2. Determination on the defense prior to the merits
A. The plaintiff asserts that the parties concerned are claiming the payment of the loan of this case against the defendant, and the defendant is exempted from the responsibility upon the decision to grant immunity.
As to this, the Plaintiff asserts that the Plaintiff’s loan claim in this case constitutes non-exempt claim under the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Act”) since the Defendant had failed in bad faith to the Plaintiff’s claim in the list of creditors submitted in the procedure for bankruptcy and exemption.
B. The main text of Article 566 of the Act provides that an obligor who has been exempted from liability is exempted from all liability for all obligations to bankruptcy creditors except for dividends pursuant to the bankruptcy procedure. However, Article 566 of the Act provides that the obligor shall not be exempted from liability for all obligations to bankruptcy creditors.
Here, “Claims that are not entered in the list of creditors in bad faith” refers to cases where a debtor knows the existence of an obligation against a bankruptcy creditor before immunity is granted and fails to enter it in the list of creditors. Therefore, if the debtor was unaware of the existence of an obligation, he/she is negligent in not knowing such fact.