Defendant 1 and one other

Defendant 1 and Prosecutor

Kim Jong-hun

Attorney Im Jae-sung

Daegu District Court Decision 2008Gohap2803 Decided October 14, 2008

All appeals by Defendant 1 and Prosecutor are dismissed.

1. Summary of grounds for appeal;

(a) A prosecutor;

(i)Legal principles

The statute of limitations for the crime of evading compulsory execution is three years, and the starting point of the starting point is when the result of the crime of evading compulsory execution is completed. Thus, the period of the crime of evading compulsory execution in this case is December 15, 2005, which the defendants received dividends on the basis of false notarial deeds, and therefore, although the public prosecution in this case brought on August 22, 2008 was lawful prior to the expiration of the statute of limitations period, the court below sentenced the defendants to be acquitted on this point by deeming that the defendants were exempted from the charge of evading compulsory execution on August 18, 2005, which received the order of seizure and collection from the court on the basis of false notarial deeds. Thus, the court below erred by misapprehending the legal principles on the statute of limitations, which affected the conclusion of the judgment.

【Unjustifiable sentencing

In light of the fact that the prosecution against the evasion of compulsory execution is lawful and the motive and circumstances leading to the crime of this case, the sentence of the court below (defendant 1: one year of imprisonment; six months of imprisonment and two years of suspended execution) is too unfasible and unfair.

B. Defendant 1 (unfair form of punishment)

In light of the motive and background leading up to the instant crime and other various sentencing conditions, the sentence of the lower court against the Defendant (one year of imprisonment) is too unreasonable.

2. Determination:

A. As to the prosecutor's assertion of misapprehension of the legal principle

The crime of evading compulsory execution, the statute of limitations of which is three years, is a dangerous crime, and is established immediately when a person bears the obligation to conceal, destroy or transfer property or make a false transfer of property with a specific risk. It does not necessarily lead to the result detrimental to the creditor or an offender commits an offense of taking certain benefits. The Defendants conspired to prepare a false notarial deed on August 8, 2005, and received a seizure and collection order from the court on August 18, 2005 on the basis of such notarial deed. Thus, it is clear that the crime of evading compulsory execution of this case was established on August 18, 2005, and the prosecution of this case was instituted on August 22, 2008, which was three years after the expiration of the statute of limitations of the prosecution of this case. Thus, the prosecutor’s above grounds for appeal are rejected.

B. As to the prosecutor's and Defendant 1's assertion of unreasonable sentencing

(1) Defendant 1

The following circumstances acknowledged by the record, namely, the crime of this case is committed by deceiving a victim who has trusted his own trust (Defendant 2) and the court for a large amount of money by deceiving him, and is not good in light of the method of crime and the scale of damage, etc., and considering the above defendant's failure to pay damages to the defendant up to the trial. Considering the above defendant's favorable circumstances, the above defendant's age, character and behavior, occupation and environment, the motive and circumstance leading up to the crime of this case, the method and consequence of the crime, the circumstances before and after the crime of this case, and the records and arguments of this case, the sentence of the court below is not too heavy or less appropriate.

Doz. Defendant 2

In full view of the following circumstances acknowledged by the record, i.e., the Defendant 2’s age, character and conduct, occupation and environment, motive and background leading to the instant crime, method and consequence of the instant crime, circumstances before and after the instant crime, and other various circumstances cited in the records and arguments, even if the Prosecutor considered the circumstances cited in the grounds of appeal, it is not recognized that the sentence of the lower court is too unjustifiable.

3. Conclusion

Therefore, since all appeals filed by the Defendants and the prosecutor are without merit, they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jong-chul (Presiding Judge)