Whether an obligor may file a lawsuit seeking confirmation of immunity where a claim is disputed whether a non-exempt claim, etc. notwithstanding the confirmation of immunity for a debtor in bankruptcy (affirmative), and whether there is a benefit in the lawsuit seeking confirmation of immunity against the creditor who holds an executive title for the exempted obligation (negative)

Notwithstanding the confirmation of a decision to grant immunity to a bankrupt debtor, where a certain claim is disputed whether it constitutes a non-exempt claim, an obligor may, by filing a lawsuit seeking confirmation of immunity, eliminate the existing apprehension and danger in a right or legal position by filing a lawsuit seeking confirmation of immunity. However, in relation to a creditor who holds an executive title with respect to the exempted obligation, an obligor filing a lawsuit seeking the exclusion of executive force based on the effect of immunity by filing a lawsuit seeking objection against the obligee becomes an effective and adequate means to remove the current apprehension and risk in a legal position. Therefore, even in such a case, seeking confirmation of immunity

Article 250 of the Civil Procedure Act; Article 566 of the Debtor Rehabilitation and Bankruptcy Act; Article 44 of the Civil Execution Act

Plaintiff (Attorney Kim Sung-jin, Counsel for the plaintiff-appellant)

Defendant

Busan District Court Decision 2016Na3741 Decided April 14, 2017

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

The grounds of appeal are examined.

1. A lawsuit seeking confirmation requires the benefit of confirmation as a requirement for the protection of rights, and the benefit of confirmation is recognized when a judgment for confirmation is rendered at the time of the most effective means to eliminate the Plaintiff’s rights or legal status in danger and danger (see, e.g., Supreme Court Decisions 2006Da68650, 68667, Feb. 9, 2007; 2014Da208255, Mar. 15, 2017).

Notwithstanding the confirmation of a decision to grant immunity to a bankrupt debtor, where a certain claim is disputed whether it constitutes a non-exempt claim, an obligor may, by filing a lawsuit seeking confirmation of immunity, eliminate the existing apprehension and danger in his/her right or legal status. However, in relation to a creditor who holds an executive title with respect to the exempted obligation, an obligor filed a lawsuit seeking the exclusion of executive force based on the effect of immunity by filing a lawsuit seeking objection to the creditor, becomes an effective and appropriate means to remove the existing apprehension and danger in his/her legal status. Therefore, even in such a case, seeking confirmation of immunity is inappropriate as there is

On the other hand, since the existence of interest in confirmation in a lawsuit for confirmation is a matter of ex officio investigation, the court should make ex officio decision regardless of the parties' assertion (see, e.g., Supreme Court Decisions 91Da12905, Jul. 12, 1991; 2005Da60239, Mar. 9, 2006).

2. According to the reasoning of the judgment below, the court below determined ex officio that the lawsuit of this case was brought for the purpose of preventing the procedure for compulsory execution by obtaining the confirmation that the Defendant’s claim for return of the lease deposit is the Defendant’s claim for exemption, and that the most effective and appropriate means to prevent the procedure for compulsory execution is the lawsuit of objection, and that the judgment of confirmation of exemption cannot be excluded from the execution force of final judgment as to the above lease deposit claim, and thus, there is no benefit in confirming the lawsuit of this case by deeming that there is no risk of

3. Examining the above legal principles and records, we affirm the above determination by the court below. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the interest of confirmation, or by violating the ideology of civil procedure or the disposition principle.

4. 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 on the bench.

Justices Jo Hee-de (Presiding Justice)