Defendant 1 and one other

Defendants

Gangwon-gu (Public prosecution) and Kim Jong-wing (public trial)

Attorney Gu Jae-won

Jeju District Court Decision 201Da556 Decided October 6, 2011

Of the judgment of the court below, the part on Defendant 1 is reversed.

Defendant 1 shall be punished by imprisonment for eight months.

However, for two years from the date this judgment became final and conclusive, the execution of the above sentence against Defendant 1 shall be suspended.

Of the facts charged against Defendant 1, the charge of evading compulsory execution on May 6, 2009 shall be acquitted.

Defendant 2’s appeal is dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

(1) mistake of facts (the point of evasion of compulsory execution on May 6, 2009 and June 30, 2010)

Defendant 1 (Defendant 1 of the judgment of the Supreme Court) changed the business registration of “○○○○○○” in his name from Nonindicted 1’s personal care to Nonindicted 2’s health, and as such, the name of “△△△△△△△△△△” was changed from Nonindicted 3 to Nonindicted 2 at the first instance court of civil action brought by Nonindicted 4 against himself at the time of changing the business registration name of “△△△△△△△△△△△△” from Nonindicted Co. 3 to Nonindicted 2, and thus, there was no possibility of enforcement since the business registration of “△△△△△△△△△△△△” was registered in the name of the corporation, and thus, there was no possibility of enforcement. Therefore, the judgment below convicting the Defendant of this part of the facts charged, even though there was no criminal intent to conceal the property for

(2) Unreasonable sentencing

The sentence of the lower court (eight months of imprisonment, two years of suspended execution) is too unreasonable.

B. Defendant 2

The sentence of the lower court (six months of imprisonment, two years of suspended execution) is too unreasonable.

2. Determination

A. Judgment on the mistake of facts by Defendant 1

(1) The portion of evasion of compulsory execution on May 6, 2009

(A) Summary of the facts charged

Defendant 1 decided to operate a game room business with Nonindicted 4 and the victim around March 2005, and invested KRW 200 million from the victim, and operated the game room from around that time. On September 30, 2005, the victim, instead of having knick from the game room business, provided that the victim was responsible for the money borrowed from the bank for investment, and the victim was forced to withdraw from the game room business.

Then, on August 30, 2007, the above Defendant filed a claim suit, such as an agreed amount, with the Jeju District Court, resulting in a specific danger of compulsory execution, and subsequently, filed a lawsuit to enforce compulsory execution. For the purpose of evading compulsory execution, the above Defendant filed a report on the closure of the Jeju Tax Office on April 30, 2009 on the fact that the business registration of the “○○○○○○○○○○○○○”, which was operated by the above Defendant in the building of △△△△△△△△△△△△△△△△△, operated by the said Defendant, was made in the name of Nonindicted Party 1, the said Defendant’s accommodation, and filed a new business registration under the name of Nonindicted Party 2 on May 6, 2009, thereby concealing the property by identifying the ownership of the

(B) The judgment of the court below

The court below found the defendant guilty of this part of the charges on the ground that the actual operator of the "○○○○ store" was the defendant 1, and it is difficult to deem that there was no possibility of compulsory execution by the victim solely on the ground that there was no entry of the business registration under the above defendant's name, and in the case of corporeal movables in the place of business, it is an important standard for ascertaining the possessor's identity in the case of corporeal movables in the place of business, making it impossible to identify the possessor of corporeal movables in the place of business by itself without any substantial transaction. If such act was conducted in a state where a lawsuit was filed by the victim, it can be deemed that the above defendant

(C) The judgment of this Court

In the crime of evading compulsory execution as stipulated in Article 327 of the Criminal Act, the term “covering property” means to make a person executing compulsory execution impossible or difficult to detect the property. It includes not only the case where the location of the property is unknown but also the case where the ownership of the property is unknown (see Supreme Court Decision 2003Do3387, Oct. 9, 2003). However, in a case where it is difficult to say that the ownership relationship is unclear due to the change of the name of the business owner, if it is difficult to say that the ownership relationship is unclear, it cannot be said that the crime of evading compulsory execution is established.

According to the evidence duly adopted and examined by the court below, since the business registration was made under the name of the non-indicted 1, who was the mother of the above defendant, from October 25, 2001 since the opening of the business and the closure of the business on April 30, 2009, the business registration was made under the name of the above defendant non-indicted 2, who was the wife of the above defendant on May 6, 2009, but there is no evidence to find that the ownership relation of corporeal movables located in the above convenience store was further unclear due to the change in the name of the above defendant's wife, since the business registration was made under the above defendant's name and the change in the name of the above defendant's wife was made in the above defendant's name, it cannot be said that the change in the above business registration name was difficult to discover the defendant's property, and this part of the charge against the above defendant constitutes a case where there is no proof of criminal facts.

Nevertheless, the judgment of the court below which found the defendant guilty of this part of the facts charged is erroneous by misunderstanding the facts and adversely affecting the conclusion of the judgment. The above defendant's assertion assigning

(2) On June 30, 2010, the portion of evasion of compulsory execution

According to the evidence duly adopted and investigated by the court below, the above defendant 1 operated the above △△△△△ cafeteria (hereinafter the above cafeteria) under the name of the above △△△△. The above cafeteria was registered on November 1, 2001 under the name of the above defendant 3, which was operated at the time of opening the business, and the new business registration was made on April 30, 201 under the name of the above defendant 2, and the above △△△△ 4 was not established on August 30, 207, and the above △△△△△△△ 200, which was hard to obtain from the above △△△△ △△ △△. The above △△△ was also sentenced to dismissal on July 9, 2009, and the judgment of the appellate court became final and conclusive on June 9, 201, which became final and conclusive on the grounds that the above defendant was not subject to the above 600,000 won or more.

In addition to the above circumstances, in the case of seizure procedure for corporeal movables, an execution officer may seize such objects where the debtor or creditor occupies, or a third party, the possessor, submits an object with the consent of the seizure (Articles 189 and 191 of the Civil Execution Act). In particular, in the case of corporeal movables in the debtor's possession, it may seize them once without asking whether they belong to the debtor's ownership due to truth, and in the case of corporeal movables in the place of business, the name of the business operator becomes an important basis for ascertaining the possessor. In addition, in addition to the circumstances such as the fact that the judgment against the defendant before and after the pronouncement of the judgment of the appellate court of civil litigation in preparation for a case where the judgment against the defendant was rendered final and conclusive, it may be sufficiently recognized that the ownership of corporeal movables in the instant restaurant was unclear by changing the name of the business operator to Nonindicted Co. 3, he/she operates from Nonindicted Co. 2 to the non-indicted

B. Determination on Defendant 2’s assertion of unreasonable sentencing

Defendant 2 also committed the instant crime against one of the obligees against Defendant 1 in order to secure his claim, and there are circumstances that may be considered in the course of the instant crime, etc. However, the instant crime was committed in a notarial deed by stating the amount of claim at KRW 100 million or more than the actual amount of claim, and thus obstructing the legitimate realization of the victim’s right by means of stating the amount of claim on the notarial deed, and the quality of such crime is not less than that of the crime, and the said Defendant did not make any effort to recover damage to the victim, and in full view of all the sentencing conditions as shown in the instant records and arguments, including the above Defendant’s age, character and behavior, family environment, the result of the instant crime, and circumstances after the crime, etc., the lower court’s punishment is too unreasonable, and thus, the allegation of unfair sentencing

3. Conclusion

Therefore, the part concerning the evasion of compulsory execution against Defendant 1 on May 6, 2009 among the judgment of the court below should be reversed on the ground that the appeal by the above defendant is well-grounded. Since the above part and the remaining part against the above defendant are concurrent crimes under the former part of Article 37 of the Criminal Act, the part against the above defendant among the judgment of the court below cannot be maintained as it is, without examining the above defendant's assertion of unfair sentencing, the part against the above defendant among the judgment of the court below under Article 364 (6) of the Criminal Procedure Act is reversed, and it is again decided as follows after pleading, and it is dismissed under Article 364 (4) of the Criminal Procedure Act

The facts of the crime recognized by this court against Defendant 1 and the summary of the evidence thereof are as follows: from the first to fourth of the judgment of the court below, Defendant 1 reported on April 30, 2009 the fact that the name of the business operator of ○○○○○ convenience store was registered as Nonindicted 1, the Defendant’s well-known mother, and subsequently reported on the business registration on May 6, 2009, and deleted the Defendant’s operation of the same building on May 6, 2009, and “△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△” in the second to fourth of the judgment of the court below, and this cited it as it is in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 327, 30 ( point of Evasion of Joint Compulsory Execution, Selection of Imprisonment) of the Criminal Act, Article 327 ( point of Evasion of Single Compulsory Execution and Selection of Imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act ( normal consideration in favor of Defendant 1 among the following reasons for sentencing):

Although there is no record of punishment for the same kind of crime against Defendant 1, the above Defendant partially repaid to Nonindicted 4, etc., each of the crimes of this case is favorable to the above Defendant. However, the ownership relationship of corporeal movables is unclear by changing the name of the business operator of the restaurant that he operated, and it is not easy for certain creditors to interfere with the legitimate realization of rights of the victim by allowing a specific creditor to enter the amount of the claim in a notarial deed in the amount of KRW 100 million or more than the actual amount of the claim, and not only is the crime that the above Defendant committed each of the crimes of this case led or independently, and the above Defendant committed each of the crimes of this case by taking into account the age, character and conduct, family environment, the background and result of the crime of this case, circumstances after the crime, etc., and all of the sentencing conditions as shown in the records

Of the facts charged against Defendant 1, the summary of the evasion of compulsory execution on May 6, 2009 is as described in Article 2-1(a)(1) of the Criminal Procedure Act. This constitutes a case where there is no proof of crime as stated in Article 2-1(1)(c) of the above Act, and thus, a acquittal is pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges Oun-so-young (Presiding Judge)