Whether a separate compulsory execution against the property belonging to the bankruptcy foundation is allowed based on a bankruptcy claim (negative in principle)

Article 348(1) of the Debtor Rehabilitation and Bankruptcy Act

The development of the KOSS Industry

Attorney Kim Jong-won, a bankruptcy trustee, who is the debtor ○○○'s taking over the lawsuit

Changwon District Court Order 2010Ra145 dated May 11, 2010

The order of the court below is reversed and the decision of the first instance is revoked. The application for the seizure and assignment order of this case is dismissed.

The grounds of reappeal are examined.

The bankruptcy procedure is a comprehensive compulsory execution procedure for all creditors, and the debtor loses the right to manage and dispose of the property that constitutes the bankrupt estate according to the declaration of bankruptcy and the right to manage and dispose of such property exclusive to the bankruptcy trustee. In this regard, Article 348(1) of the Debtor Rehabilitation and Bankruptcy Act provides that "Compulsory execution, provisional seizure or provisional disposition against the property that belongs to the bankrupt estate based on the bankruptcy claim shall lose its effect against the bankrupt estate: Provided, That the bankruptcy trustee may proceed with the compulsory execution procedure for the bankruptcy estate, but in principle, separate compulsory execution against the property that belongs to the bankrupt estate shall

According to the records, the Changwon District Court declared bankruptcy against the debtor on May 27, 2010 in the case of adjudication of bankruptcy No. 2010Hahap5 of the same court, and appointed attorney Kim Won as the bankruptcy trustee on May 27, 2010. The claims seizure and assignment order of this case are related to the property belonging to the bankrupt estate based on the bankruptcy claim. According to the above legal principles and facts acknowledged above, the claims seizure and assignment order of this case should be revoked. Thus, the order of the court below that maintained the order of seizure and assignment of the entire claim of this case as they were illegal.

Therefore, the order of the court below is reversed, and this case is sufficient for the Supreme Court to directly render a judgment, and thus, it is revoked, and the above application for seizure and assignment order is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)