The meaning of "a condition with specific danger to be enforced" in the crime of evading compulsory execution.

The term "specific danger to be executed", which is the objective element of the crime of evading compulsory execution, means the case where the creditor files an application for provisional attachment, provisional injunction, or complaint for the sake of a lawsuit of demanding performance or for the preservation thereof.

Article 327 of the Criminal Act

Supreme Court Decision 71Do319 delivered on April 20, 1971, Supreme Court Decision 81Do588 delivered on June 23, 1981

Defendant 1 and one other

Seoul Criminal Court Decision 81No6831 delivered on January 19, 1982

All appeals are dismissed.

We examine the Defendants’ grounds of appeal.

The crime of evading compulsory execution under Article 327 of the Criminal Code requires subjective intent of evading compulsory execution to the person who committed such act, and is objectively in a concrete danger of being subject to compulsory execution under the Civil Procedure Act or execution of provisional seizure, provisional disposition, provisional disposition, etc. which is applicable mutatis mutandis under the Civil Procedure Act. However, the situation where there is a concrete risk of being subject to compulsory execution refers to the case where the creditor appears to have filed a claim for performance or a claim for provisional attachment, provisional disposition, or provisional disposition for the preservation thereof (see Supreme Court Decisions 71Do319, Apr. 20, 197; 81Do588, Jun. 23, 1981).

According to the reasoning of the judgment of the court of first instance maintained by the court below, as shown in its judgment, Defendant 1 deposited a separate deposit at par value of the check issued by the same defendant, which is held by the Fire & Marine Insurance Co., Ltd. taking account of the facts in the judgment below, and refused payment by submitting a false statement of promissory note for the purpose of evading compulsory execution by Defendant 2, in collusion with Defendant 2, the above company issued one promissory note with the above defendant for the purpose of evading compulsory execution, and the above company received the above separate deposit with the original copy of a notarial deed with executory power over the bill, and it is legitimate that the above notarial act of evading compulsory execution by the defendants was completed at the time of receiving the separate deposit as above. According to the records, it is clear that the above defendants, the creditor, filed a lawsuit against the defendant for the prohibition of payment against the last sentence of October 16, 1979.

Therefore, the judgment of the court below which affirmed the judgment of the court of first instance on the basis of the crime of evading compulsory execution, is just and there is no reason to discuss the defendants' intention to evade compulsory execution, and there is a concrete danger from an objective perspective.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Lee Sung-soo (Presiding Justice)