[1] The measures to be taken by the appellate court in a case where an individual rehabilitation procedure commences when a seizure and assignment order for a claim belonging to the individual rehabilitation foundation is not finalized, and an immediate appeal is filed against a seizure and assignment order on such ground

[2] In a case where a reappeal is filed against a seizure and assignment order on the grounds that an individual rehabilitation procedure commenced against a debtor after the appellate court rendered a judgment on appeal, whether the reappeal court may reverse and send the original judgment for the purpose of examining whether the claims for a seizure and assignment order fall under individual rehabilitation claims stipulated in the creditor list (affirmative)

[1] Articles 593(1), 600(1), and 615(3) of the Debtor Rehabilitation and Bankruptcy Act; Article 229(7) and (8) of the Civil Execution Act / [2] Article 603 of the Debtor Rehabilitation and Bankruptcy Act

[1] Supreme Court Order 2007Ma1679 dated January 31, 2008 (Gong2008Sang, 280) / [2] Supreme Court Order 201Ma3 dated April 20, 2011

(1) The term “Pream Loan” means

The debtor

Seoul Central District Court Order 2013Ra300 dated March 11, 2013

The order of the court below is reversed, and the case is remanded to Seoul Central District Court Panel Division.

The grounds of reappeal are examined.

The procedure of compulsory execution, provisional attachment or provisional disposition that has already been in progress for assets belonging to individual rehabilitation estate on the basis of individual rehabilitation claims listed in the list of creditors was temporarily suspended upon the commencement of individual rehabilitation procedures. However, if the repayment plan is authorized, it shall lose its effect unless otherwise prescribed in the decision to authorize the repayment plan or the repayment plan. Therefore, if individual rehabilitation procedures commence for the debtor under the status that the assignment and assignment order that is issued on the basis of individual rehabilitation claims listed in the list of creditors has not yet become final and conclusive, and an immediate appeal is filed against the attachment and assignment order on the ground thereof, the appellate court shall dismiss an application for cancellation of the attachment and assignment order after the decision on appeal is suspended, except in a case where the assignment and assignment order is revoked for other reasons, but the repayment plan is authorized, on the ground that the effect of attachment and assignment order becomes null and void (see, e.g., Supreme Court Order 2007Ma1679, Jan. 31, 2008).

According to the records, the creditor applied for the attachment and assignment order of this case to Seoul Central District Court 2013TTT268 on the basis of the executory exemplification of the notarial deed against the re-appellant. The judicial assistant officer of the first instance court accepted the above application on January 8, 2013. Upon the debtor filed an immediate appeal against the above decision, the first instance court approved the disposition of the above judicial assistant officer on February 20, 2013. The court below dismissed the re-appellant's appeal on March 11, 2013. However, the re-appellant filed an application for commencement of rehabilitation procedure as Seoul Central District Court 2013Da9287, Jan. 16, 2013, which was after the filing of the appeal, on January 16, 2013, which was subject to the commencement of rehabilitation procedure, and on the ground that the re-appellant commenced rehabilitation procedure, the creditor's claim against the re-appellant was stated in the creditor's list and assignment order.

In light of the above legal principles, in order to determine whether the court would revoke the attachment and assignment order of this case and dismiss the application for attachment and assignment order in the above facts, it is necessary to examine whether the claim claims of this case in the attachment and assignment order of this case constitute individual rehabilitation claims listed in the creditor list of individual rehabilitation procedures commenced against the re-appellant.

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)