Whether individual compulsory execution against the property belonging to the bankrupt estate can be made based on the estate claim under the former Bankruptcy Act (negative in principle)

The bankruptcy procedure is a comprehensive compulsory execution procedure against the bankrupt, and separate compulsory execution procedure is not required in principle, and there is no special provision allowing compulsory execution under the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005), or there is no special circumstance to allow compulsory execution under the interpretation of the former Bankruptcy Act, any separate compulsory execution against the property belonging to the bankrupt foundation is not allowed, unless there is a special circumstance to permit compulsory execution under the interpretation of the former Bankruptcy Act. This is the same as in the case of compulsory execution based on the estate claim, and if the bankruptcy trustee does not respond to the legitimate repayment request of the estate creditor, the estate creditor may demand the court to exercise the right of supervision under Articles 151 and 157 of the former Bankruptcy Act, or demand the bankruptcy trustee to compensate for a tort against the bankruptcy trustee. However, it is not allowed to proceed to individual compulsory execution against the bankrupt

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).

Creditors

Seoul Central District Court Order 2006Ra378 dated October 2, 2006

The reappeal is dismissed.

The grounds for the reappeal shall be examined.

The bankruptcy procedure is a comprehensive compulsory execution procedure against the bankrupt, and separate compulsory execution procedure is not necessary in principle, and the former Bankruptcy Act (amended by Act No. 7428 of March 31, 2005, hereinafter "the Bankruptcy Act") also constitutes a bankruptcy estate (Article 6 of the Bankruptcy Act), the bankrupt's right to manage and dispose of the property belonging to the bankrupt estate is deprived of, and is exclusively attached to the bankruptcy trustee (Article 7 of the Bankruptcy Act). The bankruptcy creditor may only participate in the bankruptcy procedure and obtain satisfaction (Articles 14 and 15 of the Bankruptcy Act), and the compulsory execution and preservation disposition already commenced shall be invalidated (Article 61 of the Bankruptcy Act). Thus, unless there are special provisions allowing compulsory execution under the Bankruptcy Act or there are special circumstances to permit compulsory execution under the interpretation of the Bankruptcy Act, compulsory execution against the property belonging to the bankrupt estate shall not be permitted. The same applies to compulsory execution based on the estate claim.

Therefore, the court below is just in holding that it is not permissible for the court below to issue a seizure and collection order against the claims listed in the attached list in the decision of the court below, which belongs to the bankruptcy foundation, based on the executory exemplification of the judgment with respect to the estate claim by the creditor, other than the bankrupt, the debtor of this case, who is the estate claim against the non-party 1 corporation, pursuant to the above legal principles. This conclusion does not change on the ground that the debtor of this case mis

Ultimately, if a trustee in bankruptcy does not comply with a reasonable repayment request of a estate creditor, the estate creditor may demand the court to exercise supervisory rights under Articles 151 and 157 of the Bankruptcy Act, or demand the trustee in bankruptcy to compensate for a tort against the trustee in bankruptcy, etc. However, it is not permitted under the Bankruptcy Act to proceed with individual compulsory execution against the bankrupt estate to satisfy the claim. Therefore, the re-appeal that the order of the court below erred in the misapprehension of legal principles as to the estate claim under the Bankruptcy Act cannot be accepted.

Therefore, the reappeal of this case is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)