[강제집행면탈][집16(2)형,027]
Cases of misapprehension of legal principles as to obstruction of exercise of rights
In the exercise of right, it is reasonable to view that it includes not only the claim accompanied by possession of limited real right or object but also the case of having the right of reservation for repayment of real right under the condition of suspension.
Article 323 of the Criminal Act
Defendant
Prosecutor
Seoul Criminal District Court Decision 68No79 delivered on March 19, 1968, the Seoul Criminal District Court Decision 68No79 delivered on March 19, 1968
The part concerning the obstruction of exercise of rights in the original judgment shall be reversed, and that part shall be remanded to the Panel Division of the Seoul Criminal Court.
The prosecutor of Seoul District Prosecutors' Office and the grounds of appeal are examined.
The lower court has determined as follows with respect to the crime of obstructing the exercise of rights.
In other words, Article 323 of the Criminal Code provides that "self-owned property which has become the object of other person's possession or right" is mainly the right established by the limited real right of other person, but in case of bonds, it can be exceptionally the object of this crime only on the date of the claim accompanying the possession of the property, and in case where the debtor has decided to repay the obligation to the creditor up to a certain date, and in case where the debtor fails to repay the obligation up to a certain date, he has transferred the ownership of the specific property to the creditor, and in case of legal compromise to deliver it at the same time, the debtor shall bear the obligation due to the above reconciliation clause until the due date is prior to the due date, and the creditor shall not be deemed to have acquired the security right or other right accompanied by direct control over such property.
However, among the requirements of one's own property which is the object of another's right as to obstruction of exercise of right under Article 323 of the Criminal Act, it does not necessarily include limited real rights or the obligation accompanying possession of the object, as decided by the court below, but it also includes cases where one has the right of reservation for payment in kind, which is a condition precedent, as shown in the facts charged of this case. Thus, the judgment of the court below is erroneous in the misapprehension of the legal principle as to obstruction of exercise of right.
Accordingly, according to Article 397 of the Criminal Procedure Act, this part of the judgment of the court below shall be reversed and this part shall be remanded to the Panel Division of the Seoul Criminal Court which is the court below.
This decision is consistent with the opinions of the involved judges.
The judges of the Supreme Court (Presiding Judge) of the Red Net Sheet