[강제집행면탈][집32(1)형,386;공1984.4.1.(725) 472]
Provisional registration, etc. made for a false monetary obligation and the part of the exemption from compulsory execution against the claimant for the name of a building
If the debtor borrows money from the victim and fails to repay the principal and interest within the due date, the telephone damage to the building owned by him/her shall be caused, and if the debtor fails to repay his/her principal and interest within the due date, the right expected to be subject to compulsory execution shall not interfere with the execution of the right to request the clarification of the victim's right to demand a false monetary obligation. Since provisional registration made under the name of the debtor and the defendants who conspired with the debtor for the purpose of securing false claims only is effective in the priority preservation for the principal registration, provisional registration made for the purpose of securing false claims shall not be deemed a ground to make it impossible for the victim to enforce compulsory execution based on his/her right to demand a clarification of the above building, and the provisional registration made by the victim cannot be deemed a ground to obstruct compulsory execution. Since the above provisional registration cannot be deemed a ground to obstruct the victim's right to demand a revocation of the provisional registration filed by the victim, the above provisional registration shall not be established only on the basis of the above fraudulent debt
Article 327 of the Criminal Act
Supreme Court Decision 67Do1166 Decided December 29, 1967, 70Do643 Decided May 12, 197, Supreme Court Decision 81Do3136 Decided May 25, 1982
Defendant 1 and one other
Defendants
Attorney Hwang Sung-soo
Suwon District Court Decision 82No635 delivered on February 11, 1983
The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.
The defendants' defense counsel's grounds of appeal are examined.
According to the reasoning of the judgment of the court below, if Co-Defendant 1 borrowed money from the victims and failed to repay the principal and interest thereof by April 27, 1974, the court below held that, if Co-Defendant 2 borrowed money from the victims, it was telephone for the victims to file a lawsuit against the first building (unregistered building) owned by the Co-Defendant 1 of the court below, and the victims failed to repay the principal and interest within that time limit, they would make compulsory execution based on the above telephone settlement protocol, and the co-defendant of the court below and the defendants of the court below agree with the defendants for the purpose of evading the above compulsory execution, they would make provisional registration on the above building on December 31, 1980 on the ground that the Co-Defendant 1 of the court below secured the above fraudulent debt amounting to KRW 80 million,000,000,000,000 for the purpose of evading the above compulsory execution. Upon the victim's filing a lawsuit for cancellation, the defendants were subject to title trust by means of an unlawful debt burden by the defendants.
However, the right that is expected to be subject to compulsory execution in this case is the victims' right to demand an explanation of the above building, and the co-defendants of the court below bear false monetary obligations as stated in the judgment of the court below, and it cannot be deemed a obstacle to the execution of the right to demand an explanation. In addition, since provisional registration made in the name of the defendant, etc. is only the effect of preserving order for the principal registration, it cannot be said that the provisional registration has been made, and it does not constitute a cause for the victims to make it impossible to enforce compulsory execution based on the victims' right to demand an explanation of the above building (see, e.g., Supreme Court Decisions 67Do1166, Dec. 29, 1967; 70Do643, May 12, 1970), and then in a lawsuit to cancel the above provisional registration, the above provisional registration cannot be deemed as a obstacle to compulsory execution. Accordingly, the court below erred in the misapprehension of legal principles as to the elements and effect of the crime of evasion of compulsory execution.
Therefore, the judgment of the court below is reversed and the case is remanded to Suwon District Court Panel Division. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young