[1] The elements for establishing the crime of evading compulsory execution under Article 327 of the Criminal Code

[2] In a case where a debtor falsely transfers a claim against a third party obligor for the purpose of evading compulsory execution, the starting point of starting the statute of limitations for the crime of evading compulsory execution (=the time when notice of transfer is given to a third party obligor)

[1] Article 327 of the Criminal Code / [2] Article 327 of the Criminal Code, Article 252 of the Criminal Procedure Act

[1] Supreme Court Decision 2008Do3184 Decided June 26, 2008 Supreme Court Decision 2009Do875 Decided May 28, 2009 (Gong2009Ha, 1062)

Defendant 1 and one other

Prosecutor

Seoul Central District Court Decision 2011No333 Decided May 19, 2011

All appeals are dismissed.

The grounds of appeal are examined.

The crime of evading compulsory execution under Article 327 of the Criminal Act is a dangerous crime. In other words, the crime of evading compulsory execution under Article 327 of the Civil Procedure Act is established when there is a risk of undermining creditors by concealing, destroying or falsely transferring property or by bearing false debt with the intent of evading compulsory execution under the circumstance in which the creditor is showing the attitude to institute a lawsuit for compulsory execution or for preservation. It does not necessarily lead to the result detrimental to creditors or an offender’s profit. (see Supreme Court Decision 2009Do875, May 28, 2009, etc.). Meanwhile, the crime of evading compulsory execution is the benefit of the realization of the rights of creditors. In addition, the crime of evading compulsory execution is a benefit of protecting the rights of creditors. In a case where an obligor has falsely transferred his claim to a third obligor for the purpose of evading compulsory execution, the notification to the third obligor of the transfer of the claim is made at the time when the third obligor becomes aware of the change in the ownership of the claim, and thus the criminal act has been completed at the latest.

As to the evasion of compulsory execution on July 10, 207 among the facts charged in the instant case, the lower court acknowledged the fact that Defendant 1 prepared a false claim transfer and takeover contract with Defendant 2 that he transfers his wage and retirement allowance claims to Defendant 2, and delivered the notice of transfer to the Nonindicted Party, the head of the business management division of Skkk Mutual Savings Bank, as above, during the period from June 20 to June 25, 2007, and determined as follows: (a) whether the statute of limitations has expired as to whether the statute of limitations has expired. The statute of limitations in the crime of evasion of compulsory execution is three years from the date when the act of crime ends; (b) from June 20, 2007 to the 25th of the same month, the statute of limitations has expired; and (c) from July 10, 2007 to the date when the notice of transfer of claims was issued to the Nonindicted Party 2; and (d) it is clear that the statute of limitations has expired from the commencement date of the statute of limitations.

In light of the above legal principles, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on the statute of limitations in the crime of evading compulsory execution.

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)