1. Summary of the facts charged

The summary of the charge of evading compulsory execution among the facts charged in the instant case is that “Defendant 1 was sentenced to the lessee Nonindicted 1 to pay the deposit and beneficial expenses to the (name omitted) building he actually owned by him, and the Defendants conspired on January 29, 199, with the aim of evading compulsory execution, the Defendants made a registration of creation of a neighboring mortgage (hereinafter “mortgage-mortgage-mortgage”) with Defendant 2, the maximum debt amount of 40 million won, Defendant 1 as the debtor, and the total sum of the date of preparation on March 6 of the same year was 410,000,000 won by preparing a cash storage certificate, loan certificate, promissory note, etc. (hereinafter “certificate of claim in this case”).

2. The defendants' legal actions and the judgment of the court below

A. Defendant 2 consistently denied the above facts charged since the investigative agency, asserted that he had a claim corresponding thereto at the time of the establishment of the right to collateral security and the preparation of a certificate of claim. Defendant 1 led to the confession of the above facts charged by the investigative agency and the court of first instance up to the trial date of the court of first instance, and the facts from the trial date of the court of first instance were the first instance to the effect that, since the establishment of the right to collateral security in this case, the lessees of (building name omitted) building, such as Nonindicted 2, etc., who had concerns over not receiving dividends, made a false statement that the right to collateral security in this case would not be distributed, made a false confession by gathering money, thereby preventing the auction. Accordingly, Defendant 2 revoked this and asserted to the same effect as Defendant 2.

B. According to the evidence adopted by the prosecutor as above, it is insufficient to acknowledge that there was no obligation among the above Defendants with respect to the above facts. On the other hand, even after the establishment of the right to collateral security, Defendant 2 continued to pay the debt amount to Defendant 1, and Defendant 2 proposed payment of KRW 300 million to Defendant 1 for the purpose of paying the debt amount to Defendant 30 billion, and Defendant 1 would not have paid the debt amount to Defendant 2 with KRW 90 million on the condition that Defendant 2 would have paid the debt amount to Defendant 30 billion. Defendant 1 would not have paid the debt amount to Defendant 2 with KRW 950 million on the condition that Defendant 2 would have paid the debt amount to Defendant 30 billion on the condition that Defendant 2 would have paid the debt amount to Defendant 30 billion in advance. Defendant 2 would not have paid the debt amount to Defendant 2 with KRW 900,000,000,000,000,000.

3. Judgment of party members

However, it is difficult to accept such judgment of the court below.

In the event of any conditional juristic act between the parties, such juristic act shall be effective only upon the fulfillment of the condition concerned, and if the condition is not fulfilled, it shall also become null and void.

As acknowledged by the court below, Defendant 2 was able to settle the debt amount of KRW 200 million on the condition that Defendant 1 would be paid in lump sum. Defendant 1 and Defendant 2 agreed to conduct a partnership business with Defendant 2 on the condition that Defendant 2 would be paid in lump sum, and that the remainder would be repaid within six months, but it was clearly stated that Defendant 2 and Nonindicted 3 would be released from losses in the commercial operation on the condition that Defendant 2 would be paid in lump sum, and that the partnership business agreement between Defendant 1 and Nonindicted 3 was terminated on the condition that Defendant 2 would be paid in lump sum, if the business agreement between Defendant 1 and Nonindicted 3 was terminated, the agreement between the Defendants on the condition that the cash would be paid in lump sum, was invalidated due to the fulfillment of the suspension condition that the cash would be paid in lump sum, and it cannot be interpreted that only the amount of debt would have been reduced to KRW 200 million without the fulfillment of the suspension condition.

Likewise, as acknowledged by the court below, if the defendants were to receive a successful bid for the (name omitted of building) building from a third party and the defendant 2 received the allotment of the claim 400 million won, it shall be deemed to be a juristic act under the condition that "the defendant 2 received the claim 400 million won in the distribution procedure," and the records show that the tenant, such as the non-indicted 2, etc., paid the debt by subrogation and withdrawn the above request for auction. Thus, the above juristic act became null and void due to the non-performance of the suspension condition.

Therefore, the judgment of the court below that the defendants bear false obligations for the portion exceeding the above settlement amount on the premise that the settlement agreement was effective despite the non-performance of such conditions. Thus, the court below erred by misunderstanding facts against the rules of evidence or misunderstanding legal principles as to conditional legal acts, which affected the conclusion of the judgment. Thus, the ground of appeal assigning this error is with merit

4. Conclusion

Therefore, without examining the remaining grounds of appeal by the Defendants, the judgment of the court below shall be reversed (it shall not be exempted from destruction of the remaining fraud by Defendant 1, which is judged to have a concurrent relation between the crime of evasion of compulsory execution and the crime of concurrent crimes under the former part of Article 37 of the Criminal Act) and the case shall be remanded to the court below for a new trial and determination. It is so decided

Justices Lee Hong-hoon (Presiding Justice)