[1] Requirements for the establishment of the crime of evading compulsory execution, and whether the crime of evading compulsory execution is established in a case where a certain amount of secured debt is over the market price (affirmative)

[2] Whether Article 3(1) and Article 7(1)1 of the Act on the Registration of Real Estate under Actual Titleholder’s Name violate the Constitution (negative)

[1] The crime of evading compulsory execution is established when a person has a specific risk of being subject to compulsory execution as so-called danger, and is charged with the concealment, destruction, false transfer of property, or false debt. It does not necessarily lead to the result that the creditor is harmed, or the actor does not commit an offense of taking any profit. It does not constitute an offense of evasion of compulsory execution, on the ground that the amount of debt secured by the real estate is more than the market value of the false transferred real estate, the risk of undermining the creditor

[2] Articles 3(1) and 7(1)1 of the Act on the Registration of Real Estate under Actual Titleholder’s Name provide that the registration of a trustee’s name pursuant to a title trust agreement shall be prohibited and criminal punishment against a person who violates such provision shall be registered under the name of the actual right holder so as to conform to the substantive legal relationship of ownership and other real rights to real estate, thereby preventing any anti-social acts, such as speculation, evasion of taxes, evasion of laws, etc. which abuse the real estate registration system, and promoting normalization of real estate transactions and stabilization of real estate prices, thereby contributing to the sound development of the national economy (Article 1). As such, each of the above provisions conforms to Article 37(2) of the Constitution that provides that if necessary for public welfare, restriction of fundamental rights, and the exercise of property rights shall conform to Article 23(2) of the Constitution that provides for the guarantee of property rights of the people, or Article 17 of the Constitution that provides for confidentiality and freedom

[1] Article 327 of the Criminal Act / [2] Articles 3(1), 7(1)1, 17, 23, and 37(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name

[1] Supreme Court Decision 94Do2056 delivered on October 14, 1994 (Gong1994Ha, 3039), Supreme Court Decision 95Do2526 delivered on January 26, 1996 (Gong1996Sang, 848), Supreme Court Decision 98Do1949 delivered on September 8, 1998 (Gong198Ha, 2476)

Defendant

Defendant

Attorney Lee Jong-chul

Daejeon District Court Decision 98No756 delivered on July 15, 1998

The appeal is dismissed.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Upon examining the reasoning of the judgment below in light of the records, the court below is just in finding that the defendant transferred the real estate in this case owned by the Seocho Housing Construction Co., Ltd. to Co-defendant in the court of first instance with intent to escape from compulsory execution, and there is no error of law by misapprehending the rules of evidence or by misapprehending the legal principles of evasion of compulsory execution,

2. Regarding ground of appeal No. 2

The crime of evading compulsory execution is a so-called crime of danger, and is established immediately when a person bears the burden of concealing, destroying, transferring, or falsely bearing the property with a specific risk of being forced execution. It does not necessarily lead to the result that may harm the creditor, or an actor does not commit an offense of taking certain profits (see, e.g., Supreme Court Decisions 94Do2056, Oct. 14, 1994; 98Do1949, Sept. 8, 198); on the ground that the amount of debt secured by the real estate exceeds the value of the real estate acquired falsely as the defendant's assertion exceeds the value of the real estate transferred falsely, it cannot be said that there is no risk of undermining the creditor due to such fraudulent transfer.

In the same purport, the court below's decision that found the defendant guilty on the ground that the fraudulent transfer of the real estate of this case caused the risk of undermining the creditors' rights of the above company is just, and there is no error of law by misapprehending the legal principles of evasion of compulsory execution, as otherwise

3. As to the third ground for appeal

The purpose of Articles 3(1) and 7(1)1 of the Act on the Registration of Real Estate under Actual Titleholder’s Name is to prevent anti-social acts, such as speculation, evasion of taxes, evasion of laws, etc. which abuse the real estate registration system, and to contribute to the sound development of the national economy by promoting the normalization of real estate transactions and the stabilization of real estate prices through the registration under the name of the actual right holder so as to comply with the substantive legal relationship of ownership and other real rights to real estate (Article 1). As such, each of the above provisions conforms to the provisions of Article 37(2) of the Constitution that provides that when necessary for public welfare, basic rights may be restricted, and the exercise of property rights shall conform to the provisions of Article 23(2) of the Constitution that provides for the guarantee of property rights of the citizens, or Article 17 of the Constitution that provides for the confidentiality and freedom of privacy. The assertion contrary to this is without merit.

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

Justices Lee Yong-hun (Presiding Justice)