(영문) 서울서부지방법원 2018.02.27 2017가단19831

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(영문) 서울서부지방법원 2018.02.27 2017가단19831

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1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. On May 9, 2013, the Defendant applied for a payment order against the Plaintiff (Seoul Western District Court 2013 tea37855) and received a payment order from the above court on May 14, 2013. The original of the payment order was served on the Plaintiff on May 23, 2013 and became final and conclusive around that time.

B. After that, the Plaintiff filed an application for bankruptcy and exemption (the Incheon District Court Decision 2016Hadan1795, 2016Ma1794), and the decision became final and conclusive around February 15, 2017, upon receiving immunity from the above court.

C. At the time of bankruptcy and immunity, the Plaintiff omitted the Defendant’s claim based on the above payment order from the creditors list.

[Ground of recognition] Facts without dispute, entry of Eul evidence 1, purport of the whole pleadings

2. The plaintiff is seeking confirmation that the plaintiff's obligation against the defendant was discharged on account of bankruptcy and immunity. We examine ex officio the legality of the lawsuit of this case.

In a lawsuit for confirmation, there must be a benefit of confirmation as a requirement for the protection of rights, and the benefit of confirmation is recognized only when it is the most effective and appropriate means to obtain a judgment against the defendant to eliminate such apprehension or danger in the plaintiff's rights or legal status.

Where any claim is disputed whether a non-exempt claim is confirmed notwithstanding the confirmation of immunity for the debtor in bankruptcy, the debtor may, by filing a lawsuit seeking confirmation of immunity, eliminate the existing apprehension and danger in his/her right or legal status.

However, in relation to the creditor who has executive title with respect to the exempted obligation, the debtor's filing of a lawsuit of demurrer against the claim and seeking the exclusion of executive force based on the effect of the discharge becomes an effective and appropriate means to remove the existing apprehension and danger in the legal status

Therefore, in this case, seeking the confirmation of immunity is a final resolution of the dispute.

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