2017Da201538 All proceeds

(1) The term “Pream Loan” means

Korea Epiart Co., Ltd.

Seoul Central District Court Decision 2016Na45938 Decided December 16, 2016

November 2017, 200

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Where it is deemed necessary when an application is filed for commencement of individual rehabilitation procedures, the court may order the suspension of compulsory execution procedures filed against the debtor's property on the basis of individual rehabilitation claims, at the request of an interested party or ex officio, in accordance with Article 593 (1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter referred to as the "Bankruptcy Act").

Meanwhile, the general prohibition order refers to the prohibition of compulsory execution, etc. based on a rehabilitation claim or rehabilitation security right against all rehabilitation creditors and rehabilitation secured creditors until a court decides on an application for commencement of rehabilitation procedures pursuant to Articles 593(5) and 45(1) of the Debtor Rehabilitation Act, in extenuating circumstances where it is deemed that the above suspension order might not sufficiently achieve the purpose of rehabilitation procedures pursuant to the above suspension order. If such general prohibition order is issued, compulsory execution based on a rehabilitation claim or rehabilitation security right already performed against the debtor’s property is immediately suspended (see, e.g., Supreme Court Decision 2009Da90146, May 26, 2011).

2. The reasoning of the lower judgment reveals the following facts.

A. (1) The Plaintiff was issued a claim attachment and assignment order (hereinafter “instant assignment order”) with respect to KRW 7,198,317 out of the Defendant’s wage claim against the Defendant in Chuncheon District Court Youngcheon Branch 2014TTT 1268.

(2) On July 28, 2014, the instant assignment order was served on the Defendant, and on September 18, 2014, on the obligor A, and A did not raise any objection within one week from the date of receipt of the assignment order.

B. On July 30, 2014, A filed an application for commencement of individual rehabilitation procedures with the Seoul Central District Court opening 2014 opening 151499, and the said court rendered a prohibition order on August 5, 2014 (hereinafter “instant prohibition order”) and served on A on August 12, 2014 by the order. In addition, the said court decided to commence individual rehabilitation procedures on November 26, 2015 and decided to authorize the repayment plan on March 14, 2016.

3. The court below held that since the assignment order of this case was delivered to A only after the order was served to A and became effective after the order was delivered to A after the premise that the prohibition order of this case was the general prohibition order of prohibition, the procedure of the assignment order of this case is suspended as the confirmation is cut off, and thereafter, the decision to commence the individual rehabilitation procedure and the decision to obtain the rehabilitation plan

4. However, according to the evidence duly admitted, the Seoul Central District Court rendered a decision on August 5, 2014 to suspend the procedure for compulsory execution, provisional seizure or provisional disposition on the following grounds: (a) applying Article 593(1) of the Debtor Rehabilitation Act to the aforementioned individual rehabilitation procedure; (b) on the same day, the Seoul Central District Court rendered a decision to suspend the procedure for the seizure and assignment order of claims in the Chuncheon District Branch Support 2014TB, 1268 (hereinafter “instant suspension order”); and (c) pursuant to Article 593(1) of the Debtor Rehabilitation Act, the instant prohibition order was determined to prohibit compulsory execution, provisional seizure or provisional disposition on the corporeal movables owned by the debtor on the basis of individual rehabilitation claims and on the debtor’s wages and retirement allowances.

In light of the Supreme Court precedents seen earlier, the general prohibition order means to prohibit any rehabilitation creditor and any rehabilitation secured creditor from any compulsory execution based on any rehabilitation claim or rehabilitation security right against all of the debtor’s property pursuant to Articles 593(5) and 45(1) of the Non-Party Rehabilitation Act. The instant suspension order and prohibition order are implemented by applying Article 593(1) of the Debtor Rehabilitation Act, and they are prohibited from any compulsory execution that will be carried out in the future against any specific property, such as corporeal movables and wage claims, which are owned by the debtor, and thus, the instant suspension order and prohibition order cannot be deemed a comprehensive prohibition order, and the instant assignment order cannot be immediately suspended by delivery.

Nevertheless, the lower court erred by misapprehending the Supreme Court’s decision regarding the general prohibition order under Articles 593(5) and 45(1) of the Debtor Rehabilitation Act, which affected the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Note Justice Kim Gin-deok

Justices Kim Jae-han

Justices Park Il-san