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1. Revocation of a judgment of the first instance;
2. The instant lawsuit shall be dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. In around 2005, the Plaintiff filed a lawsuit against the Defendant for the return of the total amount of KRW 90 million (Seoul District Court 2005Kahap4761, hereinafter “instant prior suit”). The said lawsuit was initiated by service by public notice, and on September 28, 2005, the Plaintiff rendered a judgment that “the Defendant shall pay to the Plaintiff the amount of KRW 90 million and the amount of money calculated by the rate of KRW 20% per annum from July 9, 2005 to the date of full payment,” and the said judgment became final and conclusive on October 26 of the same year.
B. Meanwhile, the Defendant filed a petition for bankruptcy and discharge with the Seoul Central District Court 2008Hadan30806 and 2008 Ma30806, which was declared bankrupt on January 12, 2009 (2008Hadan30806), and the said decision became final and conclusive on July 21, 2009 upon receipt of the decision to grant discharge (2008Hadan30806) on July 6, 2009.
However, in the list of creditors in the above bankruptcy and exemption case, the entry of the Plaintiff’s claim relating to the instant lease agreement (hereinafter “instant claim”) is omitted.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 2 and 3, the purport of the whole pleadings
2. Determination as to the defendant's defense prior to the merits
A. The defendant asserts that the lawsuit of this case against the defendant is unlawful, since the defendant's immunity is granted and its effect is limited to the claim of this case.
(A) The Plaintiff asserts that the claim constitutes “a claim which is not entered in the creditor list in bad faith by an obligor,” under Article 556 subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Bankruptcy Act”), which is excluded from the exemption, as the Plaintiff had been aware of the existence of the claim in this case at the time of the above bankruptcy and application for immunity and intentionally omitted the entry on the creditor list, and thus, the above claim constitutes “a claim which is not entered in the creditor list in bad faith.”
(b).