‘파산자가 惡意로 가한 불법행위로 인한 손해배상청구권’을 보험회사가 대위변제한 경우 파산자에 대한 구상금채권의 법적 성격 (대법원 2009. 5. 28. 선고 2009다3470 판결)

Section 349 of the Bankruptcy Act of 1962 provided for debts that were to be excepted from a discharge in bankruptcy. It included "damages arisen out of the willful and malicious injury by the bankrupt."The defendant embezzled money from the company where she worked. The plaintiff, the surety company for the defendant payed in satisfaction of the surety obligation. Then the plaintiff sued the defendant for reimbursement for the amount it was obliged to pay. The defendant filed a bankruptcy. The defendant contended that the plaintiff's cause of action was dischargeable in bankruptcy because the plaintiff was not the party originally damaged and the plaintiff's claim in subrogation was not the damages arisen out of the willful and malicious injury by the defendant. The Supreme Court of Korea held that the debt sued by the plaintiff was not a dischargeable debt under the Former Bankruptcy Act, §349 and the basis of the debt was the damages arisen out of the willful and malicious injury by the defendant. That the payment by the surety company did not take the debt out of the category of claims that the bankruptcy statutes specifically exempt from being dischargeable. The New Bankruptcy Act was enacted in 2005 and section 566 of it provides for debts that are to be excepted from a discharge in bankruptcy. In addition to "damages arisen out of the willful and malicious injury by the bankrupt," it includes nondischargeable debts such as tax, wage, claims for death or personal injury caused by the debtor's gross negligence. This thesis has studied various aspects of the problems occuring when the surety company tries to get the reimbursement for the payment from the principal who is a bankrupt and asserts that their debts are dischargeable. In Japan, a number of courts have held that, when determining whether subrogation claims for those nondischargeable debts are still dischargeable or not, you should consider the purposes of the legislation and the legal character in those dischargeability exception provisions. To the contrary, most US courts have held that the payment by the surety company does not take the debt out of the category of claims that the bankruptcy statutes specifically exempt from being dischargeable. The Supreme Court of Korea has held for much the same reason. This thesis prefers to consider the purposes of the legislation and the legal character in those dischargeability exception provisions when determining whether subrogation claims for those nondischargeable debts are also dischargeable or not. The discharge is one of the primary benefits afforded by relief under the Bankruptcy Act and is essential to the "fresh start" of debtors following bankruptcy that is a central principle under the bankruptcy law. But, in fact, there are too much difficulties for the debtors to restart their economic activities in Korea, even after they got the discharge. Most of them may have lost their job and may have their licenses for economic activities suspended or cancelled, and may have difficulties to get new job. In such circumstances, it may be somewhat harsh to ask them to pay the reimbursement for the surety companies' payments.