A. Error of mistake

The facts charged in the instant case are as follows: “Defendant 1 received a total of KRW 17.3 million from the victim Nonindicted 1 as a loan borrowed.” However, in the relevant civil litigation procedure, the victim withdrawn the claim for the payment of loans to Defendant 1 and changed it into the claim for tort, and the first instance court of the instant case recognized the tort liability against Defendant 1’s victim. Thus, the facts charged in the instant case was erroneous.

In addition, the Defendants cannot recognize the above tort liability, and Defendant 1 did not borrow the above money from the victim, and thus, the existence of the victim’s claim against Defendant 1, which is the elements of the crime of evading compulsory execution, is not recognized.

Therefore, even if the Defendants did not establish a crime, the judgment of the court below which found the Defendants guilty of the facts charged of this case is erroneous and adversely affected by the judgment.

B. Unreasonable sentencing

The sentence of the lower court (two years of the suspended sentence in October, 10, two years of the suspended sentence, six months of the suspended sentence) is too unreasonable.

2. Determination

A. Error of mistake

1) Summary of the facts charged in the instant case

Defendant 1 was widely known as “○○○○”, and Defendant 2, Defendant 3, and the victim are the believers of the said temple. Defendant 1 demanded the victim to lend the cost of civil lawsuit by Nonindicted 2, which is the believers of ○○○○○○○○○, and transferred the aggregate amount of KRW 17,300,000 to the victim. Since then, Nonindicted 2 was accused of the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud branch of Busan District Court, Busan District Court) and became aware of the fact that the victim was present as a witness at the above trial and was able to provisionally seize Defendant 1’s property from the presiding judge, and that Defendant 2, even if there was no address 1, address 2, and address 300,000,000,000 won, Defendant 1 conspired with the said provisional seizure on June 7, 201, each of the above facts that Defendant 1 and the provisional seizure on the land (hereinafter “instant real property”).

2) The legislative purport of the rule of law and the crime of evading compulsory execution

Although self-help refers to any act of remedying or realizing an individual’s right infringed upon by his/her own ability in the original society, it is widely recognized in the original society. However, as the state’s power is established and the legal remedy procedure is improved, the remedy for infringement of rights is prohibited in principle by his/her own ability. Today, the development of the rule of law and the litigation system has the exclusive authority over the confirmation and realization of the rights, the remedy for infringement of rights must be governed by legitimate procedures. Our Constitution declares the principle of a rule of law that all national activities and national community life should be based on the law enacted by the National Assembly, which is the representative body of the people, and one of the elements of the rule of law is complete with the rule of law. A rule of law has the duty of judicial guarantee for efficient procedures and effective protection of rights. The guarantee of judicial procedures is an essential element for maintaining the unity and stability of the national law and protecting the rights of the people. The Constitution provides specific grounds for protecting the rights of a rule of law aimed at realizing and remedying fundamental rights, and procedural rights provided for in Article 27(1) of the Constitution.

The right to claim judicial guarantee for the protection of rights has two functions as an individual's public right against the State. One is the guarantee of the right to claim judicial action (judicial action) in a judicial agency where an individual exists, and the other is the obligation of the State that should prepare legal procedures for the effective resolution of disputes in the entire area of law. As long as the State has exclusive judicial power, the State should prepare appropriate means of remedy in line with social development and change, and establish regulations on preservative measures in which the parties can receive provisional measures promptly and simply in addition to ordinary civil procedure in order to achieve these tasks. As such, the constitutional basis for preservative measures can be found in the right to claim judicial guarantee.

The purpose of the crime of evading compulsory execution is to prevent acts that are likely to cause danger to compulsory execution when exercising or scheduled to exercise a judicial guarantee right, such as a preservative measure application or a right to file a lawsuit, and to ensure the effectiveness of the right to trial by

3) Legal principles as to evasion of compulsory execution

A) General theory

The crime of evading compulsory execution is at risk of undermining creditors by concealing, destroying, transferring property or bearing false debts for the purpose of evading any subjective compulsory execution under the objective condition that the creditor is likely to be subject to compulsory execution, provisional seizure, or provisional disposition under the Civil Procedure Act, in reality, due to the risk of undermining creditors (see Supreme Court Decision 2012Do3999, Jun. 28, 2012). It does not necessarily lead to any consequence detrimental to creditors or an actor’s profit (see Supreme Court Decision 2012Do399, Jun. 28, 2012). Since the amount of debts secured by the concealed real estate exceeds the value of the concealed real estate, such concealment does not pose a risk of undermining creditors (see Supreme Court Decision 2008Do198, May 8, 2008).

Even if a claim to be executed is conditional, a creditor may make a provisional attachment with the claim as a preserved right (Article 276(2) of the Civil Execution Act). As such, in order to escape such provisional attachment, a crime of evasion of compulsory execution is established unless he commits an act under Article 327 of the Criminal Act with a view to evading such provisional attachment, and even if the claim is extinguished due to the non-performance of such condition, it cannot affect the crime established once (see Supreme Court Decision 82Do1544 delivered on June 12, 1984).

Furthermore, even in cases where preservative measures are not void as they are applied for preservation, and where preservative measures are revoked ex post at the request for the revocation of preservation, a crime of evasion of compulsory execution is established as long as there is a risk of undermining creditors by concealing, destroying, transferring property or bearing false debts for the purpose of evading execution of provisional seizure.

B) Effect of provisional seizure of real estate

The provisional seizure of registered real estate shall be executed by entering matters concerning the decision of provisional seizure in the real estate registration register (Article 293(1) of the Civil Execution Act), and the provisional seizure execution shall have the effect of prohibiting the debtor from selling, selling, donating, creating a security right, and all other dispositions against the object of provisional seizure. Since the purpose of provisional seizure is to obtain monetary satisfaction from the debtor by commercializing the object of provisional seizure, preventing the debtor from disposing of the object of provisional seizure beyond the necessary scope to achieve such purpose may result in an excessive harm to the debtor's interest or security in general transaction, even if it violates provisional seizure, it shall be entirely valid between the parties to the act of disposal, and it shall not be asserted against other creditors participating in the execution procedure based on provisional seizure (the theory of commercial effect). According to the above theory of individual validity, the following results are generated as to provisional seizure.

First, if a debtor transferred real estate to a third party after provisional seizure, the creditors of the debtor after the transfer cannot seize the real estate that was owned by the debtor, and the demand for distribution is not possible (see Supreme Court Decision 97Da57337 delivered on November 13, 1998).

Second, in a case where a real estate was transferred to a third party after a provisional seizure, if there remains any remainder of the proceeds from the sale of the real estate after the creditors satisfy all the creditors in the execution procedure based on a provisional seizure, it shall be delivered to the third party who acquired the real estate (see Supreme Court Decision 91Nu5228, Feb. 11, 1992). If a third party creditor who acquired the real estate has filed a request for auction of the real estate, the third party creditor may receive the distribution only for the remainder after the remainder of the proceeds from the sale of the real estate excluding the amount that has the effect of the prohibition of disposal of the provisional seizure (see Supreme Court Decision 2006Da19986, Jul.

Third, a person who has acquired a mortgage after provisional seizure shall receive a distribution in the order of the provisional seizure authority and the same order (see Supreme Court Decision 2007Da77446, Feb. 28, 2008); in case where a general creditor higher than the mortgagee has made a demand for distribution, he shall distribute the distribution to the above third party, and in case where he distributes the distribution to the above third party and absorbs the distribution to the junior general creditor (see Supreme Court Order 94Ma417, Nov. 29, 199).

C) Use of preservative measures

In a case where the decision against a party in a lawsuit on the merits relating to a certain right to be preserved has become final and conclusive, not only the case where the basis of the above right to be preserved differs from that of the claim, but also the preservative measure taken earlier cannot be useful for the preservation of other rights that share the basis of the claim (see Supreme Court Decision 93Meu1259, Aug. 12, 1994). This is because permission for diversion is due to the reason that the debtor can use the preservative measure for a long time until all the lawsuits are completed, by filing a separate lawsuit on each right under preservation after listing all the preserved rights available to the creditor and receiving the preservative measure, by filing a separate lawsuit on each right under preservation.

On the contrary, when a claim has been modified during the course of the principal case lawsuit and the right to preserve is changed, the effect of the preservative measure is to preserve the changed claim unless the basis of the claim is the same (see Supreme Court Decision 81Da1223, Mar. 9, 1982).

In addition to the final and conclusive judgment against the merits, in cases where it is evident that the withdrawal of a lawsuit after the final and conclusive judgment (Article 267(2) of the Civil Procedure Act) is impossible or that the lawsuit cannot be avoided even if the lawsuit is filed due to the lapse of the limitation period, etc., the preservative measure shall be revoked on the ground that its reason ceases to exist and shall not be useful for separate litigation: Provided, That in cases of deemed withdrawal or withdrawal of a lawsuit before the final and conclusive judgment, the preservative measure may be instituted again, and thus, the effect of the preservative measure shall be maintained unless the creditor is deemed to have waived his/her intent to preserve in light of the cause, motive, and subsequent circumstances (see Supreme Court en banc Decision 97Da47637, May 2

D) Relation to the crime of real estate provisional seizure and evasion of compulsory execution

Since a crime of evading compulsory execution is mainly protected by the protection of rights of creditors, the existence of a creditor’s right, which is the basis of compulsory execution, is the elements for the crime of evading compulsory execution. Therefore, when the existence of a claim is not recognized, a crime of evading compulsory execution is not established (see Supreme Court Decision 2011Do252, Aug. 30, 2012).

It is reasonable to view that the crime of evading compulsory execution is not established in cases where the decision of provisional seizure is automatically null and void (see Supreme Court Decision 2004Da26287, Aug. 24, 2006), such as the decision of provisional seizure against the deceased at the time of the application for provisional seizure.

Since a provisional seizure takes effect as a disposition prohibition, a creditor against a third party purchaser or a third party purchaser who acquired the ownership of an object after the provisional seizure cannot oppose the provisional seizure obligee with the ownership or claim. Therefore, even if a third party purchaser who acquired the ownership of an object after the provisional seizure completes the registration of establishment of a neighboring mortgage based on a false obligation against another person, this does not affect the legal status of the provisional seizure obligee, and thus, it does not constitute a crime of evading compulsory execution (see Supreme Court Decision 2008Do2476, May 29, 2008).

4) Judgment on the Defendants’ assertion

A) The existence of claims against Defendant 1 by the victim

According to the evidence duly adopted and examined by the lower court and the trial court, the victim filed a lawsuit claiming the return of KRW 17.3 million with Defendant 1 on February 5, 2014 (Yanwon District Court Tongwon District Court Tong-won Branch 2014Gahap327), and added, around March 2014, Defendant 1 filed a preliminary claim claiming the payment of damages by asserting that he/she committed a joint tort with Nonindicted 2 with Nonindicted 2. On August 14, 2014 (the legal nature thereof falls under the withdrawal of lawsuit) the claim for the return of loans on August 23, 2014 (the legal nature thereof). The said court rendered a judgment citing the above amount of KRW 6,438,00 among the above amount of loans to Defendant 1’s joint illegal acts (aided by negligence) against Defendant 1, who is dissatisfied with Defendant 1, and appealed the remainder of the real estate at the appellate court on October 301, 2014, excluding the above amount of KRW 3003 million.

According to the above facts of recognition, since the victim's claim against Defendant 1 is recognized, this part of the defendants' assertion that the victim's claim against Defendant 1 is not constituted a crime of evading compulsory execution because there is no claim against the victim on a different premise is without merit.

In light of the legal principles that a claim to return a loan to Defendant 1 by the victim against the victim was found not to exist ex post as a result of the withdrawal and mediation of the lawsuit on the merits, the crime of evasion of compulsory execution is established as long as the act stipulated in Article 327 of the Criminal Act was committed in order to escape from provisional seizure with a conditional claim as a right to be preserved, and even if the claim was extinguished due to the non-performance of such condition after the non-performance of the condition, it cannot affect the crime established once of the crime (see Supreme Court Decision 82Do1544 delivered on June 12, 1984), unless the non-existence of the preserved right at the time of the provisional seizure decision, unless the absence of the preserved right is confirmed at the time of the provisional seizure decision, the establishment of the crime of evasion of compulsory execution does not affect the conclusion of the case where

B) Withdrawal of action on the merits and validity of the provisional seizure of this case

(1) In accordance with the purport of Supreme Court Decision 2007Da77446 Decided February 28, 2008, the lower court determined that the Defendants’ act constitutes the crime of evading compulsory execution insofar as the Defendants’ act is in danger of a decrease in the proportional distribution amount in the distribution procedure due to the Defendants’ burden of false debt and the completion of the establishment registration of a neighboring mortgage on the basis thereof, on the premise that the provisional seizure of this case is valid.

Meanwhile, as seen earlier, the Defendants asserted that the lower court erred in recognizing the facts constituting the crime, and submit again the instant provisional seizure order stating the content of the claim as reference materials in the trial. In light of the contents of the Defendants’ assertion and the background of pleadings, etc., the Defendants’ assertion can be deemed as constituting the crime of evading compulsory execution against the Defendants, on the ground that “Inasmuch as the lawsuit regarding the claim for return of the loan, which is the claim for provisional seizure, was withdrawn from the civil case related to the principal claim, as the lawsuit regarding the claim for return of the loan, which is the claim for the provisional seizure of this case

(2) As seen earlier, there is no need to strictly match the right to be preserved in the subject matter of a preservative measure with the right that is the subject matter of a lawsuit on the merits. Therefore, in a case where a claim on the merits is modified during the course of a lawsuit on the merits, the effect of the preservative measure is to preserve the altered claim insofar as the basis of the claim is identical (see Supreme Court Decision 81Da1223, Mar. 9, 1982). Here, the same purport of the claim is to include cases where the same method of resolution is different in disputes over the same living or economic interests (see Supreme Court Decision 87Da546, Aug. 23, 198).

According to the evidence duly adopted and examined by the court below and the court below, the victim sought payment of the above money from Defendant 1 based on the same facts that he remitted KRW 17.3 million to Defendant 1 in the relevant civil case, and sought the return of the money or the payment of the money as compensation for damage caused by joint tort while Defendant 1 assisted and abetted Defendant 2, who is the remitter, as the loan to Defendant 1. In light of the aforementioned circumstances, in light of the legal principles as seen earlier, it is reasonable to view the above claim for the return of loan and the claim for the payment of compensation for damage as the same ground of claim “where only the solution method is different in a dispute over the same living facts or economic interests.” Therefore, since the validity of the provisional seizure of this case remains effective while preserving the claim, the changed claim for damages, the Defendants’ assertion on this part is without merit.

B. Unreasonable sentencing

After the prosecution of this case, the Defendants deleted all of the collateral security of this case, Defendant 1 and Defendant 2 were initial offenders, and Defendant 3 had no record of criminal punishment in addition to one time before and after the prosecution of this case. Such circumstances are recognized as favorable to the Defendants.

However, the Defendants denied the instant criminal act, including: (a) the lower court’s decision on January 21, 2015, and on March 23, 2015, when the conciliation was concluded to recognize the victim’s damage compensation amounting to KRW 64 million; (b) the Defendants failed to perform the above conciliation until April 29, 2015, which is the date of the closing of argument in the trial; (c) and (d) the victims’ claim against Defendant 1 is not recognized; and (d) the Defendants’ claim against Defendant 1 is unfavorable to the Defendants. In addition, the lower court, taking into account the favorable circumstances as seen earlier, imposed a suspended sentence, which is not a sentence on the Defendants, by taking into account the equity in sentencing with the same kind of crime, age, character and conduct, environment, motive, means and consequence of the criminal act; and (e) there is no reason to deem that the Defendants’ criminal sentence was too unfair.

3. Conclusion

Therefore, the defendants' appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Cho Chang-young (Presiding Judge)