[1] Whether a lawsuit for performance can be brought against individual rehabilitation claims indicated in the list of individual rehabilitation creditors after a decision to commence individual rehabilitation procedures was rendered (negative)

[2] Whether the lawsuit for interruption of the extinctive prescription against individual rehabilitation claims entered in the list of individual rehabilitation creditors is permitted (negative), and whether the same legal principle applies to cases where a final and conclusive judgment has already been rendered prior to the decision to commence individual rehabilitation procedures (affirmative)

[1] In light of the contents of Articles 600(1)3, 603, and 604 of the Debtor Rehabilitation and Bankruptcy Act and the nature of the individual rehabilitation procedure, which is a collective debt settlement procedure, and the purport of the final judgment on an individual rehabilitation claim inspection system, even if the proviso of Article 600(1)3 excludes litigation from the act of suspending or prohibiting an individual rehabilitation procedure pursuant to the decision on the commencement of individual rehabilitation procedures, such act may be conducted in cases where a lawsuit regarding individual rehabilitation claims entered in the list of individual rehabilitation creditors was already filed at the time the decision on the commencement of individual rehabilitation procedures was rendered, and it is not permissible to file a lawsuit for performance on the basis of individual rehabilitation claims entered in the list of individual rehabilitation creditors.

[2] Article 32 Subparag. 3 and Article 589(2) of the Debtor Rehabilitation and Bankruptcy Act provides that the interruption of prescription is effective against the submission of the list of individual rehabilitation creditors. Accordingly, the interruption of prescription remains effective, barring any special circumstance, barring any special circumstance, barring any special circumstance, there is no need to acknowledge an exception to allowing the procedural acts for interrupting the extinctive prescription with respect to individual rehabilitation claims indicated in the list of individual rehabilitation creditors. Such legal doctrine likewise applies to cases where a final judgment has already been rendered prior to the decision to commence individual rehabilitation procedures with respect to individual rehabilitation

[1] Articles 600(1)3, 603, and 604 of the Debtor Rehabilitation and Bankruptcy Act / [2] Articles 32 subparag. 3 and 589(2) of the Debtor Rehabilitation and Bankruptcy Act

Hyundai Marine Fire Insurance Co., Ltd. (Attorney Kim Jong-Un, Counsel for the defendant-appellant)

Defendant (Law Firm Associate, Attorneys Seo-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na11459 decided May 14, 2013

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

According to the main sentence of Article 600(1)3, Articles 603 and 604 of the Debtor Rehabilitation and Bankruptcy Act, when a decision to commence individual rehabilitation procedures has been rendered, all acts of receiving or demanding repayment of individual rehabilitation claims that are entered in the list of individual rehabilitation creditors shall not be performed, and the confirmation of individual rehabilitation claims shall be based on an objection to the contents of the list of individual rehabilitation creditors and the final judgment on the final judgment, etc. In cases where confirmed individual rehabilitation claims are entered in the list of individual rehabilitation creditors, such entry in the final judgment has the same effect as the final judgment, and when a decision to discontinue individual rehabilitation procedures has become final and conclusive, any individual rehabilitation creditor may perform compulsory execution against the debtor according to the list of individual rehabilitation creditors. In light of the contents of such provisions, the proviso to Article 600(1)3 excludes litigation from the act of suspending or prohibiting the commencement of individual rehabilitation procedures pursuant to the decision to commence individual rehabilitation procedures, even if a lawsuit regarding individual rehabilitation claims that is entered in the list of individual rehabilitation creditors is already filed, such legal principle regarding the individual rehabilitation procedures cannot be deemed effective.

According to the reasoning of the lower judgment and the record, with respect to the instant lawsuit filed by the Plaintiff for the interruption of the extinctive prescription of the claim for indemnity based on a final judgment, the lower court acknowledged the facts that the individual rehabilitation procedure against the Defendant had already commenced and is underway prior to the filing of the instant lawsuit, and that the said claim for indemnity was confirmed without being indicated in the list of individual rehabilitation creditors, and determined that the instant lawsuit is unlawful

In light of the above legal principles, the above judgment of the court below is just and there is no error of law by misunderstanding the legal principles on procedural acts by individual rehabilitation claims.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-deok (Presiding Justice)