(a) For the crime of evading compulsory execution, compulsory execution refers to compulsory execution under the Civil Procedure Act or applicable mutatis mutandis under the same Act;

(b)The penal provisions of Section 1 of Article 64 of the Factory Mortgage Act shall not apply to the crimes against public acids constituting a factory foundation, and shall not apply to the crimes against movables which have become the object of mortgage by Article 7 of the Factory Mortgage Act.

Compulsory execution in the crime of evading compulsory execution refers to compulsory execution under the Civil Procedure Act or applicable mutatis mutandis of the same Act.

Article 327 of the Criminal Code, Article 7 of the Factory Mortgage Act, Article 64 of the Factory Mortgage Act

69Do2345 delivered on March 9, 1972

Defendant

Prosecutor

Jeonju District Court Decision 71No871 delivered on March 28, 1972

The appeal is dismissed.

Judgment on the Prosecutor's Grounds of Appeal

1. In the crime of evading compulsory execution, compulsory execution refers to compulsory execution under the Civil Procedure Act or compulsory execution to which the same Act applies mutatis mutandis, i.e., provisional seizure or provisional disposition, etc. (see Supreme Court Decisions 9Do2345, Mar. 9, 1971; 69Do2345, Mar. 9, 197). Therefore, if the original judgment is the same with this purport, the decision that it is not included in

2. The provision of Article 64 (1) of the Factory Mortgage Act is a provision which shall be punished in the case where the owner of a factory delivers to a third party movables constituting a factory foundation under the provisions of the Factory Mortgage Act (Article 11 to Article 15 of the same Act) for the purpose of transfer or pledge, and it shall not be applied to crimes against movables which are the object of mortgage pursuant to Article 7 of the Factory Mortgage Act. Thus, the judgment of the court below that the movables caused by the factory mortgage do not constitute an offense is not unlawful, and the argument for this is groundless.

3. Even if the identity of the facts charged is recognized, the fact that the prosecutor changed his argument and permitted it by the court is subject to a trial by the court under Article 298 of the Criminal Procedure Act (see Supreme Court Decision 68Do995, Sept. 19, 1968; Supreme Court Decision 68Do995, Sept. 19, 1968). Thus, the court below acquitted the charge of evading compulsory execution, which is the facts charged in this case, and put it to this question for the reason that there was no change in the bill of amendment for the crime of obstructing the exercise of rights, and it cannot be said that there was no error.

Therefore, the appeal is dismissed as without merit. It is so decided as per Disposition by the assent of all participating Justices.

Supreme Court Judge Yang Byung-ho (Presiding Judge)