Defendant 1 and three others

Prosecutor

Maliapap

Attorney Kim Young-young

Seoul Western District Court Decision 2009Da1667 Decided September 30, 2009

The prosecutor's appeal is dismissed.

1. Summary of the grounds for appeal (legal scenarios or mistake of facts);

According to Article 33 of the Act on the Budgeting and Management of Subsidies, the Ministry of Culture, Sports and Tourism may choose a compulsory execution procedure under the Civil Procedure Act or a procedure for the disposition of arrears under the National Tax Collection Act in relation to the procedures for the return of subsidies, and even if at the time of this case, he did not decide whether to proceed with the procedures for the return of subsidies under the procedures for the disposition of arrears under the National Tax Collection Act, the lower judgment which acquitted the facts charged of this case by misapprehending the legal doctrine on the procedures for the return of subsidies or by misapprehending the facts.

2. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

On July 2006, the Ministry of Culture, Sports and Tourism notified the Nonindicted Incorporated Corporation of the “decision to grant government subsidies and the order to revoke or return subsidies” equivalent to KRW 529,696,160, and then prepared the compulsory execution on the property and funds in the name of the Nonindicted Incorporated Foundation. On February 5, 2008, the Defendants conspired to conceal property in the office of the Nonindicted Incorporated Foundation to evade the compulsory execution of the Culture and Tourism sports and deposited 400 million won into the account in the name of the Nonindicted Incorporated Foundation in the name of Defendant 2 and 4.

B. The judgment of the court below

The crime of evading compulsory execution refers to evasion of compulsory execution under the Civil Procedure Act, or under specific circumstances where the execution of provisional seizure, provisional disposition, etc. applicable mutatis mutandis thereto is likely to be enforced (Supreme Court Decision 69Do2345 delivered on March 9, 197, etc.).

The procedures for returning national subsidies from the Ministry of Culture, Sports and Tourism of this case are pursuant to Article 30 of the Act on the Budgeting and Management of Subsidies, and are collected in accordance with the example of collecting national taxes pursuant to Article 33 of the same Act, and in this case, they shall be collected in preference to other public charges except national taxes and local taxes. In light of the purport of the above provision, it is reasonable to deem that the above procedures for returning national subsidies do not constitute compulsory execution of evasion of compulsory execution. Accordingly, since the facts charged in this case constitute a case that does not constitute a crime,

3. Judgment of the court below

On the other hand, as the court below properly states, the legal interest of the crime of evading compulsory execution is not national legal interest but national legal interest, so compulsory execution of the crime of evading compulsory execution is limited to compulsory execution under the Civil Procedure Act or compulsory execution, i.e., provisional seizure or provisional disposition applied mutatis mutandis under the same Act, and the disposition of arrears under the National Tax Collection Act shall not be included in the above compulsory execution.

Article 30 (Revocation of Decision on Grant due to Violation of Acts and Subordinate Statutes) of the Act on the Budgeting and Management of Subsidies provides that "the head of a central government agency may revoke the subsidy in certain cases," and Article 33 (Compulsory Collection) provides that "the head of a central government agency may collect the subsidy to be returned in the same manner as the collection of national taxes is delinquent in collecting the returned subsidy." This only aims at securing a return of the subsidy for a longer period of time by allowing the seizure of the property of the person liable for the return of the subsidy, as well as the collection of delinquent national taxes, by allowing the court to seize the property of the person liable for the return of the subsidy, which is not required to obtain a separate seizure decision, and it cannot be enforced by the head of a central government agency in relation to the procedures for the return of subsidy

Therefore, the judgment of the court below is not erroneous in the misapprehension of legal principles or misconception of facts.

4. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jin-chul (Presiding Judge) and Kim Jong-Un