[1] The meaning of Article 140(1) of the Criminal Code that "an act detrimental to its utility by any other means such as seizure or other indication of other compulsory measures performed by a public official with respect to his/her duties."

[2] In a case where an execution officer had the debtor keep corporeal movables in custody while provisionally seizing them, and the debtor transferred the corporeal movables provisionally seized to a third party, whether the crime of invalidation of indication in the line of duty is established (affirmative in principle), and whether the same applies to a case where the debtor and the transferee left the corporeal movables provisionally seized at the original place (affirmative)

[1] Of the crimes of invalidation of an indication in the line of duty under Article 140(1) of the Criminal Code, "a public official's act of harming the utility of the indication by any other means such as seizure or other compulsory disposition performed in relation to his/her duties" means the act of de facto reducing or destroying the effect of the indication in a way other than damage or concealment, and it does not mean that the legal effect of the disposition, which is the basis of the indication,

[2] In a case where an execution officer had a debtor keep corporeal movables in custody while provisionally seizing them, the effect of the provisional seizure is to prohibit the act of disposal of the seized corporeal movables. Thus, in a case where the debtor transfers the seized corporeal movables to a third party and transfers their possession, it constitutes an act of disposal prohibiting the execution of provisional seizure, and barring any special circumstances, such act constitutes an act of de facto lowering or destroying the effectiveness of the indication of provisional seizure itself. The same applies even if the debtor and the transferee kept the provisionally

[1] Article 140 (1) of the Criminal Act / [2] Article 140 (1) of the Criminal Act

[1] Supreme Court Decision 2003Do8238 Decided October 28, 2004 / [2] Supreme Court Decision 2008Do7407 Decided December 24, 2008

Defendant

Prosecutor

Incheon District Court Decision 2014No4211 Decided April 1, 2015

The judgment below is reversed, and the case is remanded to Incheon District Court Panel Division.

The grounds of appeal are examined.

1. Of the crimes of invalidation of an indication in the line of duty under Article 140(1) of the Criminal Act, the phrase “a public official’s act of harming the utility of the indication by other means such as seizure or other compulsory dispositions performed in relation to his duties” means the act of de facto reducing or destroying the validity of the indication in a way other than damage or concealment. It does not mean that the legal effect of the disposition, which is the basis of the indication, should be invalidated (see Supreme Court Decision 2003Do8238, Oct. 28, 2004).

Meanwhile, in cases where an execution officer had a debtor keep corporeal movables in custody while provisionally seizing them, the effect of the provisional seizure is to prohibit the act of disposal of the seized corporeal movables (see Supreme Court Decision 2008Do7407, Dec. 24, 2008). In cases where the debtor transfers corporeal movables provisionally seized to a third party and transfers possession thereof, such act constitutes an act prohibiting the execution of provisional seizure, and constitutes an act of de facto reducing or destroying the effectiveness of the provisional seizure itself, barring any special circumstances. The same applies to cases where the debtor and the transferee kept them in the original place of the seized corporeal movables.

2. According to the reasoning of the judgment of the court below, the court below reversed the judgment of the court of first instance convicting the defendant for the following reasons, and sentenced not guilty on the charges of this case, stating that "the defendant sold corporeal movables on which a provisional seizure indication is attached and thereby impairing the effectiveness of the indication of provisional seizure". ① The defendant notified the non-indicted of the circumstance that some corporeal movables are provisionally seized at the time of transferring the facilities inside the store of this case, and the corporeal movables were expected to be kept in the above store until legal problems are resolved. ② The execution of provisional seizure has the effect of prohibiting the debtor's sale, donation, and all other disposal of the said objects. However, this does not mean that the debtor's disposal of the said objects is absolutely null and void, but it does not mean that the defendant sold the objects of provisional seizure to the non-indicted, thereby impairing the effectiveness of the compulsory disposition.

3. However, we cannot agree with the above judgment of the court below.

A. According to the reasoning of the lower judgment, on July 31, 2013, the Defendant transferred to the Nonindicted Party the entire facilities inside the instant store, including corporeal movables with a seizure indication attached according to the execution of the provisional seizure order, and on October 2, 2013, the Defendant transferred the keys of the said store to the Nonindicted Party.

B. As can be seen, the Defendant’s transfer of possession by transferring corporeal movables on which a seizure indication was attached by the execution of provisional seizure to the Nonindicted Party by transferring the keys of the store constitutes an act prohibiting the execution of provisional seizure, and constitutes an act of de facto de facto reduction or extinguishment of the validity of a seizure indication itself. This also applies even if the said corporeal movables on home were to be kept continuously in the instant store.

C. Nevertheless, the lower court determined that the Defendant’s act cannot be deemed as impairing the effectiveness of a compulsory disposition solely on the grounds as seen earlier, by misapprehending the legal doctrine on the disposal of corporeal movables provisionally seized and the establishment of a crime of invalidation of indication in the line of duty, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

4. 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.

Justices Kim Shin (Presiding Justice)