[2] The case holding that where the registration is completed in the name of the defendant's wife and his wife with respect to each real estate acquired with the money embezzled by the defendant, each real estate shall be subject to an order of preservation for collection on the ground that there is a prima facie proof as to

[2] Where a registration has been made in the name of the defendant's wife and his wife for each real estate acquired through embezzlement by the defendant, the case holding that each real estate, the name of a third party, is subject to an order of preservation for collection on the ground that there is a vindication as to the fact that each real estate actually reverts to the defendant

In full view of the legislative purpose of the Act on Special Cases concerning Confiscation of Public Officials' Crimes (hereinafter "Special Act"), the purpose of the Act on Special Cases concerning Confiscation of Public Officials' Crimes (hereinafter "Special Act"), if the defendant could evade the collection preservation order as prescribed by the Act on Special Cases concerning Confiscation because he/she owns the property in the name of a third party, the purpose of the collection preservation system may be damaged if he/she could evade the collection preservation order as he/she owns the property, and the system introduced in criminal policy and does not necessarily need to be deemed the same object or requirements under the Civil Execution Act. As prescribed by Article 42 of the Special Act, the "property of the defendant", which can be prohibited from the disposal by issuing the preservation order for collection to the defendant, refers to the property of the defendant which actually reverts to the defendant regardless of in whose name the property belongs. In such cases, in full view of the relationship between the holder of the property and the defendant, the circumstances why he/she possesses the property, and the source of the fund, etc.

According to the records, the court below determined that each of the real estate in this case is owned by a person other than the defendant and cannot be subject to an order of preservation for collection, on the ground that the name of the third party who actually belongs to the defendant is not subject to an order of preservation for collection under the legal system of our country taking the form of a transfer of real rights, although it is proved that the registration has been made in the name of the defendant's wife and his name with respect to each of the real estate in this case

However, in light of the legal principles as seen earlier, insofar as there is an explanation on the fact that each of the instant real estate belongs to the Defendant, the order of preservation for collection may be issued for each of the instant real estate and its disposition may be prohibited. Thus, the judgment of the court below to the effect that it goes against this is unlawful, and thus,

Therefore, the order 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 by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)