In a case where the issue is whether an obligor constitutes “when it is obvious that the obligor is unable to implement the authorized repayment plan,” which is a requisite discontinuance requirement for the individual rehabilitation procedure, the case reversing the order of the court below that held that the obligor cannot implement the repayment plan after being able to obtain delayed payment for a considerable period of time according to the repayment period without thoroughly examining the circumstances sufficient to deem that the repayment period attached to the decision to authorize the repayment plan was erroneously stated, even though there is sufficient reason to believe that

Article 621(1)2 of the Debtor Rehabilitation and Bankruptcy Act

The debtor

Incheon District Court Order 2010Ra423 dated January 14, 2011

The order of the court below shall be reversed, and the case shall be remanded to the Incheon District Court Panel Division.

The grounds of reappeal are examined.

The lower court, on the premise that Article 621(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Act”) stipulates that “When it is clear that an obligor is unable to implement the authorized repayment plan (Article 621(2)),” the repayment plan should be discontinued as necessary for the individual rehabilitation procedure, the lower court determined that the debtor’s repayment plan was authorized for the purpose of paying KRW 14,767,680 each month from July 25, 2006 to June 25, 2011, while it is evident that the debtor merely paid KRW 3,691,920 for 15 months from May 25, 2009 to July 25, 2010 and then paid KRW 750,000 thereafter without implementing the repayment plan in this case.

However, the above judgment of the court below is hard to accept for the following reasons.

According to the records, the debtor filed an application for commencement of individual rehabilitation procedures in the first instance court on May 10, 2007, and submitted the repayment plan two times from July 25, 2006 to June 25, 201, stating that the repayment period is "60 months," but the repayment period is the same as the above, and the rehabilitation plan is also stated as "60 months from July 25, 2006 to June 25, 201." The rehabilitation commissioner in charge of individual rehabilitation procedures in this case prepared a report on individual rehabilitation creditors' meeting of 20th day of November 207, and the first repayment date of the debtor is "6 months from the date of 20th day of repayment" to 20th day of the above repayment plan, and if the debtor submitted the repayment plan to the debtor for 20th day after the repayment period is "6 months from the date of 20th day of repayment" to 20th day of the above repayment plan, it can be viewed as "614th day of repayment."

In addition, according to the above facts, Article 611(4) of the Act provides that "the repayment plan shall commence within one month from the date on which the repayment plan is authorized and shall include the details to be repaid regularly." Article 7(3) of the Guidelines for Handling Individual Rehabilitation Cases (Republic 2004-4) provides that "the debtor shall submit the draft repayment plan provided for in Article 610(1) of the Act, and even before the date on which the draft repayment plan is authorized, he/she may prove that the draft repayment plan can be implemented by stating that the monthly repayment amount of the draft repayment can be deposited to the rehabilitation commissioner on a specified date on the first-time date within 90 days from the date on which the draft repayment plan is submitted and on which a certain date is within 60 days from the date on which the draft repayment plan is submitted and on which the first instance court stated that "from July 25, 2006 to June 25, 2011" shall be deemed to have been erroneous for the period of repayment of the repayment plan attached to the draft plan.

Nevertheless, the court below held that the debtor is unable to implement the repayment plan of this case on the ground that the repayment commencement date of the repayment plan of this case was considered to be July 25, 2006 and the debtor delayed payment for 15 months from May 25, 2009 to July 25, 2010, and it is clear that the debtor is not able to implement the repayment plan of this case on the ground that it violated the principle of free evaluation of evidence against logical and empirical rules, and there is no error of law by misapprehending the legal principles as to the remaining commencement date of repayment that deviates from the limitation of the principle of free evaluation of evidence and the possibility of implementing the repayment plan, thereby affecting the conclusion of the judgment. The ground for

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)