[1] Whether “the existence of a claim” constitutes the elements for the establishment of a crime of evading compulsory execution (affirmative), and even if there exists a claim, if there are other assets sufficient to secure a creditor’s execution, whether it may be readily concluded that the creditor has harmed or may be harmed (negative)

[2] In a case where the defendant was prosecuted for evading compulsory execution on the ground that he obtained an apartment house under the name of the defendant and concealed most of them by depositing them into another person's account in order to evade the defendant's debt against the defendant who brought a lawsuit claiming damages in a de facto marital relationship, the case holding that the judgment below convicting the defendant of the crime of evading compulsory execution is erroneous in the misapprehension of legal principles, even though he did not constitute a crime of evading compulsory execution as long as he had other property more than the amount of

[1] The crime of evading compulsory execution under Article 327 of the Criminal Code is a legal interest in addition to the protection of the obligee’s legitimate exercise of rights. However, in light of the fact that the crime of evading compulsory execution under the current Criminal Code provides that the crime of evading compulsory execution is a kind of property of an individual’s legal interest and that damages to creditors, it is reasonable to interpret that the principal legal interest is in the protection of obligee’s rights. As such, it is reasonable to interpret that the principal legal interest is in the protection of obligee’s rights. Therefore, the obligee’s right, i.e., the existence of a claim, which is the basis for compulsory execution, does not constitute the crime of evading compulsory execution if the existence of a claim is not recognized as the elements of the crime of evading compulsory execution. In addition

[2] In a case where the defendant was prosecuted for evading compulsory execution on the ground that he borrowed an apartment house of KRW 1 billion from the defendant's name as a security and concealed the apartment house to another person's account in order to evade the defendant's debt against him, and deposited the amount of KRW 800 million among them, the case holding that the judgment below which found the defendant guilty erred in the misapprehension of legal principles as to the existence of the claim and the act of evading compulsory execution, which constitutes the elements for the crime of evading compulsory execution, on the ground that it is difficult to view that Gap's right to claim property division at the time of the defendant's act of concealing the defendant's property, and there was a proof that there was a claim of KRW 40 million in consolation money based on the judgment of the court of first instance in the family case, and since there was a fact that the defendant

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

[1] Supreme Court Decision 82Do2157 Decided October 26, 1982 (Gong1983, 126) Supreme Court Decision 2007Do3005 Decided July 12, 2007, Supreme Court Decision 2008Do198 Decided May 8, 2008, Supreme Court Decision 2010Do1015 Decided December 9, 2010 (Gong2011Sang, 179)

Defendant

Defendant

Law Firm Apex, Attorneys Doh-type et al., Counsel for the defendant-appellant

Seoul Central District Court Decision 2010No4658 Decided April 13, 2011

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, even if the defendant and the victim non-indicted 1 maintained de facto marital relations from September 7, 2002 to maintain de facto marital relations with the victim on September 9, 2009, and discussed the resolution of de facto marital relations and the division of property after the victim's settlement on September 20, 209, the victim " will bring a lawsuit" against the defendant on September 25, 2009, which was not the right to claim the provisional disposition against the defendant's right to claim the transfer of ownership on September 30, 209, which was not the right to claim the above provisional disposition on September 28, 2009. However, the defendant had been given a loan of 1 billion won on September 28, 2009 to the non-indicted 2, who was not the victim's right to claim the transfer of property from the above court, and had not been aware of the fact that the defendant used the remaining amount of money in the name of the defendant's own account under the name and market value.

However, we cannot accept the above judgment of the court below for the following reasons.

In light of the fact that the crime of evading compulsory execution under Article 327 of the Criminal Act provides for the protection of the function of compulsory execution as well as the protection of the obligee’s legitimate exercise of rights. However, in light of the fact that the crime of evading compulsory execution under the current Criminal Act provides that the crime of evading compulsory execution is one kind of property as to an individual’s legal interest and that it harms creditors, its principal legal interest is interpreted as protection of obligee’s rights. Thus, it is reasonable to interpret that a principal legal interest exists in the protection of obligee’s right, namely, an obligee’s right which is the basis of compulsory execution, and the existence of a claim is not recognized as the elements of the crime of evading compulsory execution if the existence of the claim is not recognized as the elements of the crime of evading compulsory execution (see, e.g., Supreme Court Decisions 82Do2157, Oct. 26, 1982; 2008Do198, May 8, 2008).

However, according to the evidence duly examined and adopted by the first instance court, the victim sought performance of the procedure for property division of KRW 300 million, KRW 1 billion, property division of KRW 1 billion, and the procedure for property transfer registration of the apartment house in Songpa-gu Seoul and Seodong-dong, Songpa-gu, Seoul. The above court dismissed the victim's claim for property division on September 15, 201, and rendered a judgment citing the victim's claim for consolation money amounting to KRW 40 million, and damages for delay thereof (On the other hand, according to the records, even if the defendant and the victim filed an appeal against the above judgment, the damages amounting to KRW 2010No2428 (principal lawsuit), KRW 2010, KRW 24355 (Counterclaim) of the loan amount of KRW 400 million, which was in progress by the appellate court on June 2, 2011, the victim and the victim's property under the name of the victim were actively owned by each of the defendant's debt amount of KRW 3800 billion.5 billion.

According to these facts, it is difficult to see that the victim's right to claim division of property at the time of the defendant's act of concealing the property of this case exists, and there is only room to prove that the victim's right to claim division of property exists based on the judgment of the first instance court of family case

Therefore, in light of the legal principles as seen earlier, even if the Defendant obtained a loan of KRW 1 billion to the victim as security and concealed the apartment house in the name of another person, it is reasonable to view that the crime of evasion of compulsory execution is not established, inasmuch as the existence of the right to claim division of property is not recognized, and there is another property that much exceeds the victim’s consolation money claim.

Nevertheless, the court below erred by misapprehending the legal principles on the existence of claims, which are the elements for the establishment of a crime of evading compulsory execution, and the act of evading compulsory execution, which affected the conclusion of the judgment.

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the judgment of the court below is reversed (the part on acquittal of the court below, which is a single crime, is reversed on the ground of reversal of this part of the charges), and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating

Justices Jeon Soo-ahn (Presiding Justice)