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The prosecutor's appeal is dismissed.
Reasons
1. On June 23, 2015, the Defendants: (a) rendered a judgment in the Incheon District Court that “The Defendants jointly and severally with E pay KRW 336,862,00 to F, and delayed damages to F,” (Supreme Court Decision 2015Da2290 Decided June 23, 2015).
Nevertheless, the Defendants had changed the business transaction account due to concerns over compulsory execution (e.g., seizure of accounts) according to the above judgment.
Therefore, the court below found the Defendants not guilty of the charges of this case, even though the crime of evading compulsory execution against the Defendants is sufficiently recognized. The court below erred by misapprehending the legal principles as to the crime of evading a mistake of facts and compulsory execution.
2. Determination
A. The element of the crime of evading compulsory execution under Article 327 of the Criminal Act, which is the element of the crime of evading compulsory execution, is that a creditor’s right, which is the basis of compulsory execution, is the right of an obligee, namely, the existence of a claim, is the element of the crime of evading compulsory execution.
Therefore, if the existence of a claim is not recognized, the crime of escaping from compulsory execution is not established (see, e.g., Supreme Court Decisions 88Do48, Apr. 12, 1988; 2007Do3005, Jul. 12, 2007). Therefore, in order to acknowledge a crime of escaping from compulsory execution, it shall be examined and determined as to whether a claim exists first, and in cases where a claim has already been found in civil proceedings, it shall not be determined inconsistent and inconsistent unless there are other special circumstances (see Supreme Court Decision 201Do2252, Aug. 30, 2012). (b) The fact of finding the fact that the lower court duly adopted and investigated the evidence reveals the following facts.
1) On June 23, 2015, Incheon District Court Decision 2015, Gohap 2290, “The Defendants are jointly and severally with E and severally with E to pay F KRW 336,862,00 and its interest” (hereinafter “the first instance judgment”).
2) However, the Defendants are the defendants.