(영문) 수원지방법원 2017.11.22 2017나6518 | 리걸엔진

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(영문) 수원지방법원 2017.11.22 2017나6518

약정금

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1. The part against the defendant in the judgment of the first instance is revoked.

2. The plaintiff's lawsuit against the defendant shall be dismissed.

3. Action.

Reasons

1. Basic facts

A. The Plaintiff, for a fee, transferred the “D Age Club” he operated to the Defendant and the co-defendant C of the first instance trial (hereinafter “Defendants”).

B. However, even after the Defendants received the above age club and removed it, the Plaintiff agreed to pay 300 million won to the Plaintiff as damages jointly and severally between the Defendants and the Defendants.

[Evidence Evidence] without dispute, entry of Gap evidence No. 1, the purport of the whole pleadings

2. The Plaintiff filed the instant lawsuit against the Defendant seeking payment of KRW 100 million out of KRW 300 million pursuant to the instant agreement. The Defendant asserted that he/she was declared bankrupt after the said agreement, and that he/she was granted immunity. The Plaintiff asserted the legality of the said lawsuit.

In full view of the purport of the oral argument in the statement No. 2 of Eul, the defendant filed an application for the permission of adjudication of bankruptcy and exemption from immunity with the Seoul Central District Court No. 2009, 5313, 2009Hadan5313, Feb. 27, 2009, which was after the agreement of this case, after being declared bankrupt on May 29, 2009, and the decision of exemption from immunity became final and conclusive around February 5, 2010. Since the defendant was declared bankrupt and exemption from immunity after the claim of this case against the defendant was created, the above claim of the plaintiff was lost the ability of the plaintiff to file a lawsuit with ordinary claims upon the said exemption from immunity.

The plaintiff's lawsuit against the defendant is unlawful because there is no benefit of protection of rights.

The plaintiff's above claims are not entered in the list of creditors at the time of bankruptcy and application for immunity. However, according to the main sentence of Article 566 of the Debtor Rehabilitation and Bankruptcy Act, the debtor, upon whom bankruptcy and immunity is granted, is the debtor's obligations against the bankruptcy creditor except dividends under bankruptcy procedures

참조조문

-채무자 회생 및 파산에 관한 법률 제566조

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