[강제집행면탈][공1996.12.1.(23),3498]
Whether an act of establishing a collateral security interest on real estate constitutes a false obligation of evasion of compulsory execution in order to secure a specific conditional claim that will occur in the future (negative)
If the defendant establishes a right to collateral security for real estate as a means to secure a specific conditional claim to be incurred in the future, it shall not be deemed to be a case where the defendant bears a false obligation for the purpose of securing a true obligation to be incurred in the future, unless there are any special circumstances.
Article 327 of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995)
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)
Defendant 1 and two others
Defendants
Seoul District Court Decision 94No2916 delivered on May 22, 1996
The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.
The grounds of appeal are examined.
1. Summary of the judgment below
According to the reasoning of the judgment below, the court below acknowledged the above victims' 1-4 of 154-2 of the new 444-2 of the Seoul Metropolitan Government on March 4, 197, and held that the above victims' 1-4 and 5-7-2 of the 154-2 of the above 197 were not registered for the purpose of purchasing the ownership transfer registration on the 194-14-2 of the above 154-4 of the 1977-2 of the 194-2 of the 1977-2 of the 194-2 of the 194-2 of the 1977-2 of the 194-2 of the 197-2 of the 194-17-2 of the 197-2 of the 194-2 of the 197-2 of the 197-2 of the 197-2 of the 1988-2 of the 1-2 of the 3-2 of the above land.
2. Determination
However, according to the facts acknowledged by the court below, the defendants 1 entrusted one half of the share of each of the real estate of this case to the defendant 2 and 3 under the name of the defendant 1. The defendant 1 could not exercise his/her right to share of this case in the lawsuit claiming ownership transfer registration as stated in the judgment of the victims, and the defendant 2 and 3 created each right to collateral security of this case with the defendant 1 as the owner of the right to collateral security interest of this case under agreement with the defendant 2 and 3. According to the above facts, the defendant 1 would lose his/her right to share of each of the real estate of this case by winning the lawsuit claiming ownership transfer registration as stated in the judgment of the victims and transfer his/her title to the defendant 2 and 3, instead of loss of his/her right to share of each of the real estate of this case. Thus, if the defendant 1 acquired the right to claim for damages or the right to claim for reimbursement of the price for each of the above real estate of this case to secure the above defendant 2 and 3's obligation of this case.
If so, the court below should have deliberated whether the defendants' act of establishing a collateral security on each of the real estate of this case was to secure the above claims of the defendant 1, and should have judged whether the defendants' act constitutes "the defendant's act of establishing a collateral security right," but should have judged whether the defendant's act constitutes "the defendant's act was "the defendant's "the defendant's obligation" under the crime of evading compulsory execution. However, the court below maintained the judgment of the court of first instance which convicted the defendants for the reasons stated in its decision without reaching the above decision, and it committed an unlawful act that affected the conclusion of the judgment because the court below erred by misapprehending the legal principles as to the burden of false obligation under Article 32
3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the case.
Justices Park Jong-ho (Presiding Justice)