(영문) 대법원 2015.6.11. 선고 2013도11709 판결

1. The crime of evasion of compulsory execution under Article 327 of the Criminal Act is a dangerous crime, and is likely to be subject to compulsory execution, provisional seizure, or provisional disposition under the Civil Execution Act, and is established when there exists a risk of undermining creditors by concealing, destroying, transferring, falsely bearing a false debt with the intent to evade compulsory execution, and does not necessarily lead to the result that may cause damage to creditors or an actor’s pecuniary gain. In addition, in cases where an act of bearing a false debt is performed for the purpose of evading compulsory execution in a situation where compulsory execution is likely to be practically carried out, barring any special circumstance, such as where there exists another property sufficient to secure an execution by a creditor as at the time of such act, it shall be deemed that there is a risk of undermining creditors, barring any other special circumstance, such as where there is another property sufficient to secure an execution by a creditor (see, e.g., Supreme Court Decisions 95Do2526, Jan. 26,

2. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A. The Seoul District Court 2002Gahap51475 case filed a lawsuit against D, the mother of the defendant, claiming the return of the purchase price of the land of this case, and received a favorable judgment in favor of D, 2002, 22 October 2, 2002, that "D, 75 million won, and 10% per annum from January 30, 200 to September 7, 2002, and 25% per annum from the next day to the day of full payment." The judgment became final and conclusive on November 19, 202 (hereinafter referred to as "the judgment of this case").

B. On April 21, 2008, the instant judgment became an executive title, and the procedure for compulsory auction was commenced for the real estate located in Namwon-si as indicated in the judgment of the court below (hereinafter referred to as the “instant real estate”). On December 8, 2001, the procedure for compulsory auction was completed on March 25, 201, based on the registration of the right to claim ownership transfer on the instant real estate that was made by the Defendant as the person holding a provisional registration on December 8, 2001, based on the registration of the right to claim ownership transfer on February 11, 201, the Defendant completed the principal registration (hereinafter referred to as the “instant principal registration”) on the ground of a sales contract dated February 7, 2011.

C. At the time of the principal registration of this case, the principal and interest based on the instant judgment exceeds KRW 250 million. Meanwhile, the value of the property recognized by the lower court, other than the real property at the time of the principal registration of this case, is equivalent to KRW 53,772,590 of the real value of the sale and purchase land of this case, ② at least 10,981,440 won of the officially assessed land price of the forest land located in Seopopo-si in the judgment of the lower court, ③ at least the officially assessed individual land price of Gangseopo-si in the judgment of the lower court, ③ at least KRW 9,660,360 of the officially assessed land price of Gangseopo-si

3. Examining the above facts in light of the legal principles as seen earlier, it cannot be deemed that there was another asset sufficient to secure compulsory execution by the principal and interest of the judgment of this case even to D, who is the debtor at the time of the principal registration of this case, with the exception of the real estate of this case. Thus, if the defendant completed the principal registration of this case under a false sales contract with the intent to escape compulsory execution as to the real estate of this case, it is reasonable to view that there was a risk of harm or harm to D

4. Nevertheless, the lower court, on the grounds as indicated in its reasoning, concluded that there was a sufficient property to secure execution of I at the time of the principal registration of the instant case, and concluded that the crime of evasion of compulsory execution was not committed on the grounds that there was no risk to harm I due to the principal registration of the instant case.

Therefore, the lower court erred by misapprehending the legal doctrine on the crime of evading compulsory execution, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. 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.