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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by each person;
Reasons
1. Facts of recognition;
A. On November 27, 2006, the Plaintiff lent KRW 30,000,000 to the Defendant on December 31, 2007, with interest rate of KRW 24%, respectively.
(hereinafter “instant loan”). (b)
On September 14, 2013, the Defendant filed an application for immunity with the Seoul Central District Court 2013Hadan9446, 2013da946, 2013da946, and received a decision on April 22, 2014 from the above court (hereinafter referred to as “instant immunity”), and the said decision became final and conclusive on May 10, 2014.
C. The defendant did not enter the plaintiff's loan claims of this case in the list of creditors prepared and submitted by the court upon filing an application for bankruptcy and exemption.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 5 (including those with serial numbers), the purport of the whole pleadings
2. Determination on the defense prior to the merits
A. Regarding the Plaintiff’s claim for the payment of the instant loan, the Defendant asserted that the Plaintiff could not respond to the Plaintiff’s claim because the Defendant was granted the decision on immunity, and thus, the Plaintiff’s claim is examined as a defense prior to the merits.
B. Where the decision to grant immunity to the debtor becomes final and conclusive, the debtor is exempted from all liability to the bankruptcy creditor. In such a case, the bankruptcy claim shall lose the ability and executory power of filing a lawsuit that has ordinary claims as natural debts.
Meanwhile, Article 566 Subparag. 7 of the Debtor Rehabilitation and Bankruptcy Act provides that “a claim which is not entered in the list of creditors in bad faith by an obligor” refers to a case where the obligor, despite being aware of the existence of an obligation against a bankruptcy creditor before immunity is granted, is not entered in the list of creditors. Thus, when the obligor was unaware of the existence of an obligation, even if he was negligent in not knowing the existence of the obligation, it does not constitute a non-exempt claim as provided
Supreme Court Decision 201No. 14, 201