The objects of the crime of evading compulsory execution under Criminal Act

Article 327 of the Criminal Act

Supreme Court Decision 2003Do187 Decided April 25, 2003 Supreme Court Decision 2007Do2168 Decided May 14, 2009 (Gong2009Sang, 905) Supreme Court Decision 2010Do4129 Decided December 8, 201 (Gong2012Sang, 148)

Defendant

Defendant

Attorney Kim Tae-won

Gwangju High Court Decision 2012No286 decided January 24, 2013

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. As to occupational embezzlement

Examining the evidence duly adopted by the first instance court, which maintained the reasoning of the lower judgment, the lower court was justifiable to have found the Defendant guilty of this part of the facts charged on the grounds stated in its reasoning, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation

2. On the evasion of compulsory execution

A. Article 327 of the Criminal Act aims to protect the rights of creditors who are imminent in compulsory execution by punishing “a person who has injured creditors by concealing, destroying or transferring property with the intent to escape from compulsory execution, or by bearing false debts,” and the subject matter of the crime of evading compulsory execution should be that a creditor from among the debtor’s property may be subject to compulsory execution or preservative measures under the Civil Execution Act (see, e.g., Supreme Court Decisions 2003Do187, Apr. 25, 2003; 2010Do4129, Dec. 8, 2011).

B. According to the reasoning of the judgment below, the court below found the defendant guilty of this part of the facts charged on November 25, 2009 on the ground that the defendant concealed the apartment of this case by completing the registration of transfer of ownership for the reason of sale in the name of non-indicted 2, who is the defendant's friendship in the non-indicted 1 corporation for evasion of this case, although he had concerns over being subject to compulsory execution in the name of non-indicted 2's purchase of the apartment of this case in the name of non-indicted 2, who is the defendant's friendship in the name of the non-indicted 2, in the public service center of the Gwangju District Court on November 25, 2009, after purchasing and registering the 183,000,000 won of the 10-dong 105, Gwangju Mine-dong apartment (hereinafter "the apartment of this case").

C. However, we cannot accept the above determination by the court below for the following reasons.

(1) The record reveals the following: (a) the instant apartment was sold in lots to Nonindicted Co. 3 on or around September 15, 2009 after the completion of registration of ownership preservation; (b) the Defendant purchased the instant apartment with the approval of Nonindicted Co. 3’s licensed real estate agent Nonindicted Co. 5 from September 21, 2009; and (c) the buyer’s name was changed from Nonindicted Co. 4 to the Defendant; and (d) the Defendant, upon the approval of Nonindicted Co. 3 on October 30, 2009, changed the buyer’s name on the instant apartment from the Defendant to Nonindicted Co. 2; and (e) on November 25, 2009, on September 15, 2009, the ownership transfer registration of Nonindicted Co. 2’s name was completed on or around September 15, 2009.

(2) Examining the above facts in light of the legal principles as seen earlier, the Defendant merely acquired the right to claim the registration of ownership transfer of the instant apartment with respect to Nonindicted Co. 3 following the sale of the above purchase right, and did not acquire the ownership thereof. Therefore, the instant apartment cannot be subject to compulsory execution or preservative measure against the Defendant, and thus, it cannot be subject to the crime of evading compulsory execution.

(3) Nevertheless, the lower court found the Defendant guilty of evading compulsory execution due to the concealment of the apartment in this case on the grounds stated in its reasoning. In so doing, it erred by misapprehending the legal doctrine on the objects of the crime of evading compulsory execution, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

3. Scope of reversal

Therefore, the part of the judgment of the court below regarding the crime of evading compulsory execution should be reversed, and since the court below sentenced this part to the defendant as a concurrent crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the former part of Article 37 of the Criminal Act and sentenced the defendant to a single punishment,

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)