In cases where there is a bankruptcy or application for immunity against the debtor, whether the seizure and collection order based on the bankruptcy claim is limited pursuant to Article 57 of the Debtor Rehabilitation and Bankruptcy Act (affirmative)

Article 557 of the Debtor Rehabilitation and Bankruptcy Act

Creditors

The debtor

National Bank, Inc. and four others

Suwon District Court Order 2009Ra189 dated April 14, 2009

The order of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of reappeal are examined.

Article 557(1) of the Debtor Rehabilitation and Bankruptcy Act provides that "when an application for immunity exists, and a decision to discontinue a bankruptcy becomes final and conclusive or a decision to terminate a bankruptcy is rendered, any compulsory execution, provisional seizure or provisional disposition based on any bankruptcy claim against the debtor's property shall not be made until the judgment on the application for immunity becomes final and conclusive, and any compulsory execution, provisional seizure or provisional disposition based on any bankruptcy claim against the debtor's property shall be suspended, and Article 57(2) of the same Act provides that "if a decision to grant immunity becomes final and conclusive, the procedure suspended pursuant to the provisions of paragraph (1) shall lose its effect." Thus, where a debtor's bankruptcy or application for immunity is filed, the seizure

According to the records, on January 12, 2009, the creditor applied for the seizure and collection order of this case against the debtor's third debtor on the basis of an executory promissory note No. 1209 against the debtor, and the fact that the judicial assistant officer of the first instance court rendered a decision to accept it on January 15, 2009, and the debtor raised an objection, and the first instance court approved the decision of the judicial assistant on April 7, 2009 and sent the case of objection to the court of appeal to the court of appeal as the appellate court. The court below dismissed the appeal on April 14, 2009 without merit. Meanwhile, if the Incheon District Court is 2007, Feb. 19, 2009, the debtor is exempted from immunity 1070 and 2007Hadan10723 in the case of adjudication of bankruptcy.

Therefore, in such cases, the court below should determine the effect of the above seizure and collection order by examining whether the debtor filed a petition for bankruptcy, whether the decision to discontinue the bankruptcy becomes final and conclusive, whether the immunity decision becomes final and conclusive, and further whether the immunity decision is exempted from the liability to the creditor.

Nevertheless, without examining the above circumstances, the court below maintained the first instance court which approved the attachment and collection order of this case without examining the above circumstances. In such a case, the court below erred by misapprehending the legal principles as to the effect of bankruptcy and exemption, thereby failing to exhaust all necessary deliberations.

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 Shin Young-chul (Presiding Justice)