The meaning of "other methods" and "harming the effectiveness of compulsory execution" among the elements of the crime of infringement on the effect of compulsory execution against real estate.

Article 140-2 of the Criminal Act

Supreme Court Decision 2002Do4801 Delivered on November 8, 2002

Defendant

Prosecutor

Gwangju District Court Decision 2012No2062 Decided December 7, 2012

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

The grounds of appeal are examined.

The crime of infringement on the effectiveness of a real estate under Article 140-2 of the Criminal Act is established by infringing on a real estate already named or delivered by a compulsory execution, or impairing the effectiveness of a compulsory execution by any other means. Here, the term “other means” means any and all interference acts corresponding to any means or methods that may impair the effectiveness of a compulsory execution, and the term “harming the effectiveness of a compulsory execution” means any and all interference acts that interfere with the use of, benefit from, or exercise of rights on, the real estate already named or delivered by a right holder by compulsory execution (see Supreme Court Decision 2002Do4801, Nov. 8, 2002).

According to the reasoning of the lower judgment and the evidence admitted by the lower court, the Nonparty purchased the instant land and buildings ( Address 1 omitted) in the course of compulsory auction on September 29, 201, 201, and completed delivery execution on February 29, 2012. The Defendant, who operated a child care center on the instant land and building, installed a cement brick (hereinafter “the instant brick fence”) of 1,550cm wide and 120cm long (1,50cm wide and 1,50cm wide and 120cm wide and 1,50cm wide and 120cm wide and 1,50cm wide and 440cm wide and 34 square meters wide and 44 square meters wide and 43 square meters wide and 44 square meters wide and 44 square meters wide and 74 square meters wide and 74 square meters wide and 74 square meters wide and 74 square meters wide and 74 square meters wide and 74 square meters wide of the instant building, where the Defendant installed the instant brick.

Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that the Defendant’s act of installing the instant bricks constitutes an act of infringing upon the Nonparty, who is the right holder of the instant land and building delivered by compulsory execution, using or gaining profit from the instant land and building or impeding the exercise of rights according to its intended purpose, and even if the instant bricks were installed in accordance with the existing steel fence installed by the Defendant for children’s safety while operating a child care center, the Nonparty does not use or gain profit from the instant land and building only within the scope limited under the premise that the Defendant’s existence of the said steel fence is restricted. Such circumstances do not interfere with the Defendant’s act of infringing on the Defendant’s compulsory execution effect.

Nevertheless, for reasons indicated in its holding, the court below erred by misapprehending the legal principles on the infringement of the validity of compulsory execution against real estate in determining that the act of installing a brick fence in this case did not constitute an act infringing the utility of compulsory execution against the real estate in this case, which affected the conclusion of the judgment. The ground of appeal

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 Yong-deok (Presiding Justice)