2. B

3. C.

A. Error of mistake

The facts charged of this case are "the defendant A received a total of KRW 17.3 million from the victim H as a loan borrowed." However, in the related civil litigation procedure, the victim withdrawn the claim for the payment of loan to A, changed the claim for tort, and the court of first instance recognized the tort liability against the victim A. Thus, the facts charged of this case was erroneous.

In addition, the Defendants cannot recognize the above tort liability, and there is no fact that A borrowed the above money from the victim, so the Defendants' existence of the victim's claim against A, which is the requisite for 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 court below (two years of suspended sentence in October, 10, Defendant B, and C: Imprisonment with prison labor for each of six months) is too unreasonable.

2. Determination

A. Error of mistake

1) Summary of the facts charged in the instant case

Defendant A is well-known of “F”, and Defendant B, C, and the victim were the believers of the said inspection. The victim was demanded to lend F’s new civil litigation expenses to the victim and received a total of KRW 17,300,000 won. Since I was accused of F’s complaint, the victim was subject to a trial due to the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud, etc.) (B) and the victim was present at the aforementioned trial and was entitled to provisional seizure against A’s property from the presiding judge. On June 7, 2011, the victim was aware of the fact that the victim was able to be released from provisional seizure of KRW 100,000,000,000 for the purpose of establishing a provisional seizure contract with KRW 200,000,000,000,000,000,0000,000 won (hereinafter referred to as “the instant real property”). The provisional seizure contract was concluded by each of the aforementioned creditors.

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 in accordance with 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. 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 a concrete basis for protecting the rights of a rule of law with no defects in the right to claim for the realization and remedy of rights.

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 a right to claim judicial action against a judicial agency where an individual exists, and the other is the State's duty to prepare legal procedures for the effective resolution of disputes in the entire legal area. As long as the State has exclusive judicial power, the State has to 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 procedures, 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 a dangerous crime and under the objective condition that is practically likely to be subject to compulsory execution, provisional seizure, or provisional disposition under the Civil Procedure Act. In other words, the crime of evading compulsory execution is established when there is a risk of undermining creditors by concealing, destroying, transferring or falsely bearing false debts for the purpose of evading compulsory execution under the state in which creditors are showing the attitude to institute a lawsuit on the merits or on the preservation of the property, and does not necessarily lead to the result detrimental to creditors or an actor’s gain (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 constitute a risk of undermining creditors (see Supreme Court Decision 2008Do198, May 8, 2012).

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), so long as an act prescribed in Article 327 of the Criminal Act was committed for the purpose of evading such provisional attachment, a crime of evasion of compulsory execution is established, and even if the claim is extinguished due to the non-performance of such condition, it may not affect the crime established once (see Supreme Court Decision 82Do1544, Jun. 12, 1984).

Furthermore, even in cases where preservative measures are not void as they are ex officio, and where preservative measures are revoked ex post according to an objection to preservation and a request for 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 or transferring property or by falsely bearing false debts for the purpose of evading the execution

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 the cashing of the object of provisional seizure, preventing the debtor from disposing of the object beyond the necessary scope to achieve such objective may result in an excessive harm to the debtor's interest or security in general transaction, even if the act of disposal violates provisional seizure, it shall be entirely effective 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 (commercial effect theory). According to the above individual relative effect theory, 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 thereof cannot be made (see Supreme Court Decision 97Da57337, Nov. 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, then the creditors reach the third party who acquired the real estate (see Supreme Court Decisions 91Nu5228, Feb. 11, 1992; 91Nu528, Feb. 11, 1992). If a third party’s creditor who acquired the real estate has filed a request for auction of the real estate, the third party’s creditor may receive a distribution only for the remainder after deducting the amount that has the effect of the prohibition of disposal of the real estate from the proceeds from the sale of the real

Third, a person who acquired a mortgage after provisional seizure shall receive a distribution in the same order with the person holding the provisional seizure (see, e.g., Supreme Court Decision 2007Da77446, Feb. 28, 2008). In a case where a general creditor higher than the mortgagee has made a demand for distribution, he/she shall distribute the distribution to the above third person, and then absorbs the distribution of the junior general creditor (see, e.g., Supreme Court Order 94Ma417, Nov. 29, 194).

C) Use of preservative measures

If a final and conclusive judgment against a party in a lawsuit on the merits relating to a right to be preserved has become final and conclusive, not only the case where the basis of the above right to be preserved and the claim is different, but also the preservative measure taken earlier cannot be useful even if it is intended to preserve other rights on the basis of the claim (see Supreme Court Decision 93Meu 1259, Aug. 12, 1994; Supreme Court Decision 93Meu 1259, Aug. 12, 199). The grounds for revocation of a preservation order are as follows: (a) permitting the diversion are the grounds for revocation of the preservation order, by listing all the rights available to the creditor and receiving the preservative measure in succession, by filing a separate lawsuit as to each

On the contrary, when a claim was modified during the course of the principal case lawsuit and the right to preserve is altered, the effect of the preservative measure is to preserve the altered claim (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., preservative measures shall be revoked on the ground that the relevant ground 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, such preservative measures may be brought again, and such measures shall be deemed to have been invalidated for the purpose of a separate lawsuit: Provided, That in light of the cause, motive, and subsequent circumstances of withdrawal, etc., the effect of preservative measures shall be maintained unless the creditor is deemed to have waived his/her intent to preserve

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, that is, 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 evasion of compulsory execution does not constitute a crime of evasion of compulsory execution even in cases where the decision of provisional seizure is automatically null and void (see, e.g., Supreme Court Decision 2004Da26287, Aug. 24, 2006) as the decision of provisional seizure against the deceased at the

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 establishment registration 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 a claim against Defendant A by the victim

According to the evidence duly adopted and examined by the lower court and the trial court, the victim filed a lawsuit seeking the return of KRW 1730,000,000 from the Defendant on February 5, 2014 (the Changwon District Court 2014Gahap327), and added, around March 2014, A filed a preliminary claim seeking the payment of damages by asserting that he/she committed a joint tort with the said lawsuit, and subsequently, on August 14, 2014 (the legal nature thereof falls under the withdrawal of a lawsuit) the claim for the return of loans was withdrawn (the legal nature thereof is applicable to the withdrawal of a lawsuit). On October 23, 2014, the said court rendered a judgment citing the above amount of KRW 6438,00,000,000,000,000,000,000,0000,000,000 won was immediately paid to the Defendant on October 30, 2014.

According to the above facts of recognition, since the victim's claim against the defendant A is recognized, this part of the defendants' assertion is without merit that the victim's claim against the defendant is not constituted a crime of evading compulsory execution on the other premise.

In light of the legal principles that, even if the claim to return a loan to Defendant A by the victim was proved to exist ex post as a result of the withdrawal of the lawsuit in the merits and the establishment of mediation, 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 the right to be preserved, and even if the claim is extinguished due to the non-performance of such condition after the non-performance of such condition, it cannot affect the crime established once of the crime (see Supreme Court Decision 82Do1544, Jun. 12, 1984), unless the non-existence of the preserved right is confirmed 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 is not affected by the establishment of the case

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

(1) In accordance with the purport of the Supreme Court Decision 2007Da77446 Decided February 28, 2008, the lower court held that the Defendants’ act constitutes a crime of evading compulsory execution insofar as the Defendants’ act is deemed to constitute a crime of evading compulsory execution, on the premise that the provisional seizure of this case is valid under the premise that the provisional seizure of this case is valid, under the premise that the Defendants bears false debt and complete the establishment registration

Meanwhile, as seen earlier, the Defendants asserted that the facts of the offense of the lower court were erroneous, and submit again the instant provisional seizure ruling stating the content of the claim claim as reference material in the trial. In light of the contents of the Defendants’ assertion and the process of pleadings, etc., the Defendants’ assertion was withdrawn in civil cases related to the claim for the return of loan, which is the claim for the provisional seizure of this case, inasmuch as the Defendants’ claim was withdrawn in the principal case related to the claim for the return of loan, which is the claim for the provisional seizure of this case, the said provisional seizure of this case’s claim

Therefore, I examine this.

(2) As seen earlier, there is no need to strictly match the right to be preserved in a preservative measure with the right, which 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 modified claim insofar as the basis of the claim is identical (see Supreme Court Decision 81Da1223, Mar. 9, 1982). The same purport of the claim is that the same is identical in this context includes cases where only the method of resolution is different in a dispute 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

In civil cases, based on the same fact that he remitted KRW 17.3 million to Defendant A, he/she sought payment of the above money from the same person, and sought the return of the money by deeming it as a loan to Defendant A, who is the remitter, or sought the payment of the money as compensation for damages arising from joint tort while aiding and abetting A, who is the final beneficiary. In light of the above legal principles, it is reasonable to view that the above claim for return of loan and the claim for payment of compensation for damages are identical in cases where only the solution method is different in a dispute over the same living facts or economic interests. Therefore, it is reasonable to view that the provisional attachment of this case remains effective in preserving the claim for damages, which is the altered claim, and therefore, this part of the Defendants’ assertion is without merit.

B. Unreasonable sentencing

After the prosecution of this case, the Defendants’ cancellation of all of the instant collateral security right, Defendant A and B were the primary offenders, and Defendant C had no record of criminal disposition in addition to one time before and after the fine was imposed.

However, the Defendants denied the instant crime by maintaining the previous argument that the victim’s claim against A is not recognized after the lower judgment was rendered on January 21, 2015, and on March 23, 2015, the conciliation was established, which recognized the victim’s damage compensation amounting to KRW 64 million, but did not perform the above conciliation until April 29, 2015, which is the date of the date of the closing of argument in the trial (limited to the victim’s refusal of receipt at the date of the closing of argument in the trial, and did not perform the obligation to transfer ownership following the conciliation), and that the victim’s claim against the victim is not recognized. In addition, the lower court denied the Defendants’ claim that the Defendants were disadvantageous to the Defendant. In addition, the lower court, taking into account the favorable circumstances as seen earlier, it is difficult to view that the Defendants were subject to a suspended sentence, rather than a sentence, by taking account of equity in sentencing with the same kind of crime and sentencing, age, character and conduct, environment, motive, means and consequence of the crime, etc.

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 Choi Ho-ok

Judges Dong-ju