[1] The object of the crime of evading compulsory execution under the Criminal Code

[2] Where a title trustee becomes a party to a contract title trust and completes the registration of ownership transfer under his/her name, whether such real estate constitutes an object of evasion of compulsory execution as the property of the title truster, which is the debtor (negative)

[1] Article 327 of the Criminal Act aims to protect the rights of creditors who are imminent in compulsory execution by punishing “a person who has injured creditors by concealing, destroying or falsely transferring property with the intent to escape from compulsory execution, or by bearing false debts.” Thus, the object of the crime of evading compulsory execution should be that the creditor from among the debtor’s property may be subject to compulsory execution or preservative measures under the Civil Execution Act.

[2] In a case where a title truster and a title trustee entered into a so-called contract title trust agreement with the owner who was unaware of the fact that the title trustee was a party to the contract, and completed the registration of ownership transfer of the pertinent real estate pursuant to the said contract, the title trustee shall acquire full ownership of the pertinent real estate pursuant to the proviso of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, notwithstanding the invalidation of the said contract, notwithstanding the invalidity of the title trust agreement between the title truster and the title trustee. In a case where the title truster becomes aware of the fact that the title trust agreement exists, the registration of ownership transfer in the name of the title trustee is null and void and the ownership of the pertinent real estate is owned by the seller. In any case, the title truster cannot acquire

[1] Article 327 of the Criminal Code / [2] Article 327 of the Criminal Code, Article 4 (2) of the Act on the Registration of Real Estate under Actual Titleholder's Name

[1] Supreme Court Decision 2001Do4759 decided Nov. 27, 2001 (Gong2002Sang, 231) / [2] Supreme Court Decision 2002Da66922 decided Jan. 28, 2005 (Gong2005Sang, 393)

Defendant

Prosecutor

Changwon District Court Decision 2006No1378 decided Feb. 15, 2007

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 327 of the Criminal Act aims to protect the rights of creditors who are imminent in compulsory execution by punishing “a person who has injured creditors by concealing, destroying or falsely transferring property with the intent to escape from compulsory execution, or by bearing false debts.” Thus, the object of the crime of evading compulsory execution should be that the creditor from among the debtor’s property may be subject to compulsory execution or preservative measures under the Civil Execution Act.

Meanwhile, in the event that a title truster and a title trustee entered into a so-called contract title trust agreement and entered into a sales contract on real estate with the owner who was unaware of the fact that the title trustee was a party to the contract and completed the registration of ownership transfer of the pertinent real estate in accordance with the said sales contract, the title trustee, despite the invalidation of the title trust agreement between the title truster and the title trustee, shall acquire the full ownership of the pertinent real estate under the proviso of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (see Supreme Court Decision 2002Da66922, Jan. 28, 2005). If the title trustee becomes aware of the existence of a contract title trust agreement, the registration of ownership transfer in the name of the title trustee becomes null and void, and thus the title truster becomes unable to acquire the ownership of the pertinent real estate in any case, and the real estate cannot be subject to compulsory execution or preservative measures against

In the same purport, if the defendant purchased the apartment of this case directly from the non-indicted 1 in the name of the trustee non-indicted 2, the apartment of this case cannot be the object of the crime of evasion of compulsory execution, and therefore, there is no evidence to support the guilty charge of evasion of compulsory execution of this case. The court below is justifiable in holding that there is no error of law such as misunderstanding of legal principles as to the object of the crime of

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

Justices Jeon Soo-ahn (Presiding Justice)