[1] The meaning of "a specific danger to be subject to compulsory execution as an element for the crime of evading compulsory execution"

[2] The case holding that where a promissory note issued by the defendant in excess of approximately KRW 1.8 billion is in default, there is a specific risk of compulsory execution

[1] The crime of evading compulsory execution under Article 327 of the Criminal Code is established when the creditor damages the creditor by concealing, destroying, falsely transferring or falsely bearing the property in a specific danger to be subject to compulsory execution. Here, the specific danger to be enforced refers to the case in which the creditor files an application for provisional attachment or provisional disposition for the claim for performance or for the preservation of the claim.

[2] The case holding that where a promissory note issued by the defendant in excess of approximately KRW 1.8 billion is in default, there is a specific risk of compulsory execution

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

[1] Supreme Court Decision 84Do18 delivered on March 13, 1984 (Gong1984, 668), Supreme Court Decision 86Do1553 delivered on October 28, 1986 (Gong1986, 3155), Supreme Court Decision 95Do2526 delivered on January 26, 1996 (Gong196, 848), Supreme Court Decision 98Do1949 delivered on September 8, 1998 (Gong198Ha, 2476) / [2] Supreme Court Decision 97Do2047 delivered on January 23, 1998

Defendant

Prosecutor

Seoul District Court Decision 96No6557 delivered on November 14, 1996

The non-guilty part of the judgment below shall be reversed, and that part of the case shall be remanded to the Panel Division of Seoul District Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below held that among the facts charged in the case of this case, the defendant's apartment house 30-27 of Goyang-si, Goyang-si, Goyang-si, the defendant did not actually sell it to the creditor for the purpose of evading the compulsory execution, and that the factory site and building for the defendant's management under the Gyeonggi-si, Goyang-si, Goyang-si, Goyang-si, Goyang-si, 1995, which were owned by the defendant, were exempted from compulsory execution on July 28, 1995 by transfer for the purpose of evading the defendant's compulsory execution, and that the defendant's payment of promissorysory notes paid from the defendant's creditors as the price for goods was all after the registration of ownership transfer, and since there was no evidence to deem that the above creditors were trying to file a claim for bills, etc., or to file a provisional attachment or provisional disposition after the above registration, the defendant could not be exempted from compulsory execution at the time of the above registration, and even if the above creditors were not guilty from the defendant's issuance of promis notes.

The crime of evasion of compulsory execution under Article 327 of the Criminal Act is established when the creditor damages the creditor by concealing, destroying, falsely transferring property or bearing false debt under specific danger to be subject to compulsory execution. Here, the situation in which there is specific danger to be subject to compulsory execution refers to the case in which the creditor files an application for provisional attachment or provisional disposition, or files an application for provisional disposition, for the purpose of preserving the claim for performance (see, e.g., Supreme Court Decisions 84Do18, Mar. 13, 1984; 86Do1553, Oct. 28, 1986; 95Do2526, Jan. 26, 1996).

According to the records, the Defendant was aware that, even though a promissory note was defaulted as above, the Defendant had been able to continue to operate the relevant large-scale fishing industry even thereafter, and it was understood that he would not immediately execute the right to collateral security from the bank, the mortgagee of the above factory site and building, and that the above factory was falsely transferred for the purpose of evading provisional seizure from other financial institutions or general creditors. At the time of the above default, the Defendant did not have any other assets than the above real estate, and the Defendant’s total amount of debts would considerably exceed KRW 1,80,000,000, and there were many promissory notes issued by the Defendant for payment of the goods. In light of the above, unless a promissory note was defaulted, the Defendant’s act of non-indicted 5’s non-indicted 1’s non-indicted 1’s act of non-indicted 9’s non-indicted 1’s act of non-indicted 1’s non-indicted 1’s act of refusing to pay the goods at the maturity, barring any special circumstances.

Nevertheless, the court below determined otherwise without considering the meaning of the default on payment of promissory notes. The court below erred by misunderstanding the facts against the rules of evidence or misapprehending the legal principles on the crime of evading compulsory execution. Thus, the ground of appeal pointing this out is acceptable.

Therefore, the non-guilty part of the judgment of the court below shall be reversed, and the case shall be 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.

Justices Seo Sung-sung (Presiding Justice)