[1] In a case where a debtor is granted immunity in a bankruptcy procedure, whether it is permissible to exercise the creditor's subrogation right with a bankruptcy claim as a preserved claim (negative in principle)

[2] The purport of Article 567 of the Debtor Rehabilitation and Bankruptcy Act, which provides for immunity and liability of the guarantor, etc.

[3] The case holding that Article 567 of the Debtor Rehabilitation and Bankruptcy Act is not applicable by analogy, since a bankruptcy creditor cannot exercise a claim for reimbursement against a third-party debtor for whom immunity is granted by exercising a creditor's subrogation right, and a third-party debtor is not a person who bears an obligation against a debtor and a bankruptcy creditor.

[1] Article 404 of the Civil Code, Article 566 of the Debtor Rehabilitation and Bankruptcy Act / [2] Article 567 of the Debtor Rehabilitation and Bankruptcy Act / [3] Article 404 of the Civil Code, Articles 566 and 567 of the Debtor Rehabilitation and Bankruptcy Act

[1] Supreme Court Decision 2008Da25978 decided Jun. 26, 2008 (Gong2008Ha, 1069)

Plaintiff (Law Firm Song-dong, Attorney Park Hong-chul, Counsel for the plaintiff-appellant)

Defendant 1 and two others

Seoul Southern District Court Decision 2008Na9421 Decided January 8, 2009

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

Article 566 of the Debtor Rehabilitation and Bankruptcy Act provides that a creditor entitled to exercise his/her right as a right to exercise his/her right in order to preserve his/her claim, and the main sentence of Article 566 of the Debtor Rehabilitation and Bankruptcy Act provides that "a debtor granted the exemption shall be exempted from all of his/her obligations to a bankruptcy creditor except dividends pursuant to bankruptcy procedures." However, since the proviso provides that a debtor shall not be exempted from his/her liability only for certain obligations specified in the proviso, where a debtor is granted the exemption from liability in bankruptcy procedures, exercising the creditor's right to exercise the creditor's right to exercise the creditor's right to exercise the creditor's right to exercise the creditor's right

In addition, Article 567 of the Debtor Rehabilitation and Bankruptcy Act provides that "the immunity shall not affect the rights of the bankruptcy creditor against the debtor's guarantor and any other person who bears the obligation together with the debtor and any security provided for the debtor for the bankruptcy creditor." This means that the debtor's immunity does not affect the debtor's liability for repayment and the security provided by the surety.

According to the reasoning of the judgment below, the plaintiff is the creditor against the non-party 1 and the non-party 2, the husband of the non-party 1, died on May 9, 2004. The plaintiff inherited the real estate of this case owned by the non-party 1 and the defendants, the wife of the non-party 2, and the plaintiff filed an application for compulsory auction against the non-party 1's inheritance share. The auction court distributed the amount of KRW 53,242,146 on December 27, 2006 to the non-party 1, 50,000 won to the non-party 1, the lessee of the fixed date, and distributed the amount of KRW 80,018,630 among the amount of credit 80,274,215 won to the plaintiff, and although the plaintiff filed a lawsuit of demurrer against the non-party 1, the court decided that the lease deposit against the non-party 1 was indivisible due to its nature and thus it can be confirmed that the plaintiff lost the non-party 21.

According to the above legal principles and facts, Kim Young-young received the total amount of lease deposit from the non-party 1 in the compulsory auction procedure for the inheritance shares, and thereby the defendants exempted them from the obligation to return their lease deposit and accordingly charged with the liability to reimburse the non-party 1. However, the plaintiff cannot exercise his right of subrogation as bankruptcy creditor and the plaintiff cannot exercise his right of recourse against the non-party 1's defendants. The defendants cannot be viewed as the debtor's obligation to the plaintiff together with the non-party 1. Thus, the defendants cannot seek the payment of the amount equivalent to the compensation liability from the defendants by analogy application of Article 567 of the Debtor Rehabilitation and Bankruptcy Act

In the same purport, the judgment of the court below dismissing the plaintiff's claim is just, and there is no violation of law by misapprehending legal principles.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)