Whether compulsory execution based on estate claims, such as wage claims, also becomes void due to declaration of bankruptcy (affirmative)

Even in cases where compulsory execution is effected on the basis of estate claims, such as wage claims, before bankruptcy is declared, the compulsory execution shall lose its effect due to the declaration of bankruptcy.

Articles 6 (see current Article 382 of the Debtor Rehabilitation and Bankruptcy Act), 7 (see current Article 384 of the Debtor Rehabilitation and Bankruptcy Act), 14 (see current Article 423 of the Debtor Rehabilitation and Bankruptcy Act), 15 (see current Article 424 of the Debtor Rehabilitation and Bankruptcy Act), 38 (see current Article 473 of the Debtor Rehabilitation and Bankruptcy Act), 40 (see current Article 475 of the Debtor Rehabilitation and Bankruptcy Act), 61 (see current Article 348 of the Debtor Rehabilitation and Bankruptcy Act), 151 (see current Article 358 of the Debtor Rehabilitation and Bankruptcy Act), 154 (see current Article 361 of the Debtor Rehabilitation and Bankruptcy Act), 3615 of the Debtor Rehabilitation and Bankruptcy Act (see current Article 361 of the Debtor Rehabilitation and Bankruptcy Act), and 364 (see current Article 361 of the Debtor Rehabilitation and Bankruptcy Act) of the Debtor Rehabilitation and Bankruptcy Act).

[Plaintiff-Appellee] 2006Ma1277 dated July 12, 2007 (Gong2007Ha, 1248)

Re-appellant

Boxa department Co., Ltd.

The bankruptcy trustee in the bankruptcy department corporation, the bankrupt corporation

Han National Land Development Corporation

Gwangju District Court Order 2004Ra73 dated February 24, 2006

The reappeals are dismissed. The costs of reappeals are borne by the re-appellants. They are corrected to add a list of designated persons to the original judgment.

The grounds of reappeal are examined.

The bankruptcy procedure is a comprehensive compulsory execution procedure against a debtor declared bankrupt, and separate compulsory execution procedure is not required in principle, and the former Bankruptcy Act (amended by Act No. 7428 of March 31, 2005) also constitutes a bankrupt estate (Article 6 of the former Bankruptcy Act). The bankrupt's right to manage and dispose of any property belonging to the bankrupt estate is deprived of the bankrupt's right to manage and dispose of it (Article 7 of the former Bankruptcy Act). The bankruptcy creditor is able to obtain satisfaction only by participating in the bankruptcy procedure after he/she is prohibited from exercising his/her right individually by the declaration of bankruptcy (Articles 14 and 15 of the former Bankruptcy Act). Thus, it does not mean that any separate compulsory execution procedure against the bankrupt estate shall not be permitted unless there are special provisions allowing compulsory execution under the former Bankruptcy Act, or there are special circumstances to permit compulsory execution under the interpretation of the former Bankruptcy Act, and that it shall not be permitted for any individual compulsory execution against the bankrupt estate creditor under the former Bankruptcy Act (Article 701 of the former Bankruptcy Act).

Meanwhile, the main text of Article 61(1) of the former Bankruptcy Act provides that "any compulsory execution, provisional seizure or provisional disposition against any property belonging to the bankrupt estate shall lose its effect against the bankrupt estate." Article 62 of the same Act provides that "if a disposition for arrears is taken against any property belonging to the bankrupt estate in accordance with the example of the National Tax Collection Act or the collection of national taxes, the declaration of bankruptcy shall not interfere with the continuation of such disposition." With the exception of the provisions of Article 62 of the same Act concerning claims for arrears, there are no provisions in the former Bankruptcy Act concerning compulsory execution, etc. conducted before the declaration of bankruptcy. However, as for claims for arrears, the bankruptcy trustee's right to manage and dispose of the bankrupt estate is prevented by individual execution, and at the same time, it is necessary to secure the smooth progress of the bankruptcy procedure by preventing any repayment among the estate claims and equal repayment of estate claims between the same order. Even if compulsory execution is permitted after the declaration of bankruptcy, separate compulsory execution against the property belonging to the bankrupt estate estate estate is not permitted, it shall be deemed that the compulsory execution against the estate claims.

According to the reasoning of the order of the court below, the creditor (appointed party; hereinafter referred to as the "creditor") was ordered to seize the contact membership rights of the third debtor, Hancheon National Land Development Co., Ltd. (hereinafter referred to as the "third party debtor") on the basis of the original order of the payment order finalized on September 10, 2002 and the amount of KRW 30,00,000 out of KRW 533,194,950, as the claim amount, based on the original order of the payment order finalized on September 10, 202, and was ordered to attach the contact membership rights of the third debtor, the debtor, the Hancheon National Land Development Co., Ltd. (hereinafter referred to as the "debtor"), and thereafter, when the bankruptcy was declared on September 9, 2003 against the debtor during the realization procedure for the above contact membership rights, the court of execution may, upon the debtor's request for cancellation of the execution of the above contact membership rights on April 22, 2004.

In the same purport, the court below is just in rejecting the creditor's assertion to the effect that the decision to revoke the attachment execution of this case is unfair, on the premise that the compulsory execution, based on the estate claim other than the tax claim subject to a disposition on default, becomes invalid due to the declaration of bankruptcy, and that the compulsory execution, based on the estate claim other than the tax claim subject to a disposition on default, becomes invalid due to the declaration of bankruptcy. There is no error in the misapprehension of the legal principles as to the validity

Therefore, the creditor's reappeal against the cancellation order of seizure execution of this case is dismissed, and as there is an obvious error in the order of the court below, it is decided to correct it ex officio. It is so decided as per Disposition by the assent

Justices Park Si-hwan (Presiding Justice)