[1] Requirements for the crime of evading compulsory execution

[2] The case holding that the crime of evasion of compulsory execution is established where the husband bears false debts for the purpose of evading compulsory execution, such as provisional seizure based on the right to claim a division of property from the wife requesting a divorce, and the husband has made a provisional registration on the right to claim a transfer of ownership

[1] Article 327 of the Criminal Code / [2] Article 327 of the Criminal Code

[1] Supreme Court Decision 95Do2526 delivered on January 26, 1996 (Gong1996Sang, 848)

Defendant 1 and one other

Prosecutor

Jeonju District Court Decision 2007No1383 Decided April 3, 2008

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, when Defendant 1 was anticipated to take compulsory execution measures, such as provisional seizure, on the basis of the right to claim division of property, against Defendant 1’s real estate, during the process of the occurrence of family inequality between Defendant 1 and his wife, which was demanded by Nonindicted 1 to proceed to divorce, the court below decided that Defendant 1 borrowed money from his wife Nonindicted 2 and pretended that he would have made a provisional registration for the purpose of security of the real estate as security, and that Defendant 1 would have made a provisional registration for the purpose of security of the real estate. On January 10, 2007 for the purpose of evading compulsory execution, the court below acquitted Defendant 1 as to each of the following facts: Defendant 2 was not guilty on the ground that Defendant 1 had a false obligation to transfer KRW 15 million to the Agricultural Cooperatives Deposit Account in the name of Defendant 1; Defendant 1 withdrawn this in cash on the 11st of the same month and returned to Nonindicted 2; and Defendant 2 was not guilty on the ground that the ownership transfer registration had been made based on the ownership transfer registration.

2. However, the lower court’s determination is difficult to accept for the following reasons.

The crime of evading compulsory execution under Article 327 of the Criminal Act is a danger of undermining creditors by concealing, destroying, falsely transferring property or by bearing false debts with the intent to evade compulsory execution, under the objective condition that is, in reality, likely to be subject to compulsory execution, provisional seizure, or provisional disposition under the Civil Execution Act, as a danger crime, under the objective condition that is likely to be subject to compulsory execution, provisional seizure, or provisional disposition under the Civil Execution Act. In other words, the crime of evading compulsory execution is established where creditors are at risk of undermining creditors by concealing, destroying, transferring property, or bearing false debts. It does not necessarily lead to any consequence that may cause damage to creditors, or where an actor bears false debts for the purpose of evading compulsory execution in a situation where compulsory execution is likely to be practically carried out (see Supreme Court Decision 95Do2526, Jan. 26, 1996).

According to the facts acknowledged by the court below and the records, Defendant 1 does not merely close each provisional registration of this case in the future of Defendant 2, but Defendant 2 bears a false debt by having the appearance of Defendant 2 lending money to Defendant 1. Defendant 1 bears a false debt by having the above appearance. Defendant 1 bears a false debt as above, and Defendant 1 demanded divorce from Defendant 1 from the mid of December 2, 2006, before the provisional registration of this case was completed, before the provisional registration of this case, before Defendant 1 was completed ( Nonindicted Party 1 filed a divorce lawsuit against Defendant 1 and filed a claim for property division, etc. on January 23, 2007, and Defendant 2 was also subject to non-indicted 1’s provisional registration, and the execution of this case’s provisional registration is also subject to non-indicted 1’s criminal execution, and thus, Defendant 1 bears no risk of evading the above property, and the execution of this case’s provisional registration was made. In light of the aforementioned facts and circumstances, Defendant 1 made a false statement.

Nevertheless, the judgment of the court below which acquitted the charged facts of this case on the grounds as stated in its holding is erroneous in the misapprehension of legal principles as to the crime of evading compulsory execution, which affected the conclusion of the judgment. The grounds for appeal

3. 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 Nung-hwan (Presiding Justice)