2012Ra687 Declaration of Bankruptcy

Park 00

Daegu District Court Order 2012Hadan1092, 2012 dated November 16, 2012

April 28, 2014

1. Revocation of the decision of the first instance; 2. The appellant shall be relieved of;

1. Facts explained by the record;

A. On March 2, 2012, the appellant filed an application for bankruptcy and exemption from liability (hereinafter “instant application”) with the Daegu District Court 2012 lower lower court (1092-2012, 1092) on the ground that the appellant cannot pay the appellant a total of KRW 246,136,748 due to his/her ability to repay the debt. B. On August 28, 2012, the court of the first instance declared the appellant bankrupt on the ground that the appellant is in insolvency status, and on the same day, on the grounds that the appellant was unable to meet the expenses for bankruptcy with the bankruptcy estate on November 16, 2012, the appellant failed to comply with the aforementioned request for exemption from liability under Article 5 of the Bankruptcy Act, and on the same day, the appellant failed to comply with the request for exemption from liability under Article 60 of the Act on the Establishment of the Housing and the 00-dong Housing (hereinafter “Dong-dong Housing”) that he/she purchased before and after consultation with the appellant.

2. Summary of grounds for appeal;

Even if the materials submitted by the appellant to the trustee in bankruptcy were not sufficiently explained as to the process of the formation of the purchase fund of each house of this case, the process of the moving-in report to the house owned by 00 after divorce, the court of first instance asserts that the decision of the appellant which rejected the exemption from liability for the appellant on the grounds of the trustee in bankruptcy's breach of duty to explain to the trustee in bankruptcy is unfair, since the appellant submitted a written statement to the trustee in bankruptcy, "the explanation of housing with 00 persons, the reason why the appellant's former spouse and children are unable to submit the documents."

3. Determination

"When a person who has an obligation to explain fails to explain without any justifiable reason or makes a false explanation" in Articles 562(1)1 and 658 of the Act refers to cases where a debtor, etc. fails to explain without any justifiable reason, or fails to explain or makes a false explanation upon receipt of a request for necessary explanation from the bankruptcy trustee, the inspection committee, or the creditors meeting. In order to deem that a debtor's explanation constitutes a violation of the duty to explain under Article 658 of the Act, more careful judgment is required in consideration of the fact that it may be subject to criminal punishment. Therefore, it is reasonable to deem that the person who has an obligation to explain is not cooperative in bankruptcy proceedings without a justifiable reason, and it becomes a ground for refusing to grant immunity for the violation of the duty to explain. Even if the person who has an obligation to explain fails to cooperate with the bankruptcy proceedings without any justifiable reason, it is not reasonable to deny immunity on the ground of the breach of the duty to explain unless it is deemed that

In light of the above legal principles, the appellant responded to a request for explanation by the trustee in bankruptcy by submitting a written self-written statement on the title "(i) the circumstance of the formation of the purchase fund of each house of this case, the reason why the appellant requested the trustee in bankruptcy to explain the moving-in report on the house owned by 00 after the divorce," "the reason why the appellant cannot submit documents concerning the former spouse and children," and (ii) the time when the appellant divorced from 00, the time when the appellant acquired each house of this case on May 31, 2004 and the time when the appellant acquired each house of this case on or around April 2004 and July 2004, the time when the appellant requested the trustee in bankruptcy from September 17, 2012 to explain the request of the trustee in bankruptcy, and (iii) the explanation of this case does not appear to fall under the grounds of Article 58 (1) or 68 (4) of the Act without any justifiable reason that the appellant is not deemed to fall under the legitimate property of this case."

4. Conclusion

Therefore, the decision of the court of first instance that decided not to grant immunity to the appellant is unfair, and the appeal of this case is with merit, so the decision of the court of first instance shall be revoked and the appellant shall be exempted from liability as ordered by the decision of the court of first instance.

Chief Judge and Vice-President of the Supreme Court

Glag Glaverba laver

Judge Lee Jae-in