Defendant 1 and one other

Defendants

Kim Young-young

Attorneys Yang Sung-sung et al.

Seoul Central District Court Decision 2010 Godan772, 4950 (Consolidated) Decided January 13, 2011

The part of the judgment of the court below against the Defendants is reversed.

Defendant 1 (Co-defendant 1 of the lower court’s judgment) is punished by imprisonment with prison labor for one year and by imprisonment for eight months, respectively.

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts

A) Defendant 1, a debtor, agreed with Co-defendant 1 (Defendant 2 of the judgment of the court of first instance, Co-defendant 1, and the judgment of the court of first instance), who is a creditor, and brought an objection to the claim with the co-defendant 1 (Defendant 2 of the judgment of the court of first instance), does not constitute fraud. Defendant 1 did not know that Co-defendant 1 agreed to the extent of the dividend claim that he would be liable to the victim Non-indicted 7, 8, and 5 (hereinafter all referred to as the "victim Non-Indicted 7, etc.") who is the creditor, and Defendant 1 did not have any auction claim such as Non-Indicted 1 or his heir, and the crime of evading the fraud and compulsory execution of this case was led by Defendant 2, and the defendant did not have any intention to evade the

B) Defendant 1 did not commit an indecent act against the victim Nonindicted 11.

C) Nevertheless, the lower court found Defendant 1 guilty of all the charges. In so doing, the lower court erred by misapprehending the rules of evidence, misapprehending the legal principles, or misapprehending the legal principles.

2) Unreasonable sentencing

The sentencing of the court below is too inappropriate.

B. Defendant 2

1) Legal principles

A) Since Defendant 1’s filing of a lawsuit of demurrer against Co-Defendant 1, etc. in the first instance trial is by agreement with the intention, it does not constitute deception, and it cannot be deemed that the court’s judgment denying compulsory execution is an act of disposal such as victim Nonindicted 7, etc.

B) In addition, the above act does not constitute concealment, damage, false transfer, or false debt burden, which is the attitude of the act of evading compulsory execution.

C) Nevertheless, the lower court found Defendant 2 guilty of all the facts charged. In so doing, it erred by misapprehending the legal doctrine.

2) Unreasonable sentencing

The sentencing of the court below is too inappropriate (the additional appeal of April 14, 201, which was submitted after the expiration of the period for submitting the written appeal, shall be determined within the scope of supplement in case of supplement in case of the reasons for appeal as stated in the written appeal, and no separate decision shall be made as to Defendant 2’s assertion of mistake of facts that is not entirely written in the written appeal).

2. Determination

A. Fraud

1) Summary of this part of the facts charged

Defendant 1 is the owner of the share 507.371/1,657 among the 1657.5m2 of the building site in Seosung-dong, Seosung-gu, Daejeon. Nonindicted Party 1, the husband of the first instance court, was the co-defendant 1, on August 21, 2006, applied for compulsory auction of the instant site in the Notarial Deed of KRW 310,000,000 against Defendant 1, and died on August 28, 2006, upon receipt of the decision to commence compulsory auction around 2006, the Daejeon District Court applied for the compulsory auction of KRW 23510, and around February 24, 2009, Nonindicted Party 1, the heir of the first instance court, applied for the qualified auction of the instant site to Nonindicted Party 1,369,901,700 won, within the limit of 161,1616, the obligees of Nonindicted Party 16.

The Defendants and Co-Defendant 1 conspiredd Defendant 1 and Defendant 2 to divide the instant site and receive KRW 100,00,000 from Defendant 2, as Defendant 1 did not fully repay the debt owed to Nonindicted 1 to Nonindicted 1, Non-Indicted 1, Non-Indicted 1, Non-Indicted 1, Non-Indicted 1, Non-Indicted 1, Non-Indicted 4, Non-Indicted 1, Non-Indicted 1, Non-Indicted 1, Non-Indicted 1, Non-Indicted 1, Non-Indicted 1, and submit a false confirmation of debt completion in the name of Co-Defendant 1, etc., and cancel the decision of compulsory auction on the instant site already

On March 31, 2009, Co-defendant 1 of the court of first instance and the court of first instance prepared a joint signature of Co-defendant 1 and four other co-defendant 1 of the court of first instance to the effect that “The inheritor of Non-Indicted 1, who is the creditor deceased, shall confirm that all claims based on a notarial deed with the executory power of No. 10668, 1998, by a notary public against Defendant 1 are fully satisfied, and shall not raise any civil or criminal objection in the future,” at the office of Non-Indicted 13 certified judicial scrivener in front of the Daejeon Daejeon Daejeon Daejeon Daejeon District Court, Seo-dong, Daejeon District Court, Daejeon District Court: on April 1, 2009, Defendant 1 had a non-Indicted 13 certified judicial scrivener file a lawsuit of objection with the plaintiff and the non-indicted 4 of the court of first instance to the defendant (hereinafter referred to as the “instant lawsuit”).

On July 1, 2009, the Defendants and Co-defendant 1 of the court of first instance conspired to deception the court to acquire property profits equivalent to KRW 163,61,100 of the market price of the instant site by holding that “A notary public against the Plaintiff shall not enforce compulsory execution based on a promissory note No. 10668, Nov. 30, 1998, signed by the notary public against the Plaintiff on November 30, 1998,” and the above judgment was finalized on July 30, 2009, by allowing the completion of the auction procedure on the instant site, thereby obtaining property profits equivalent to KRW 163,61,100 of the market price of the instant site.

2) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged by comprehensively taking account of the adopted evidence.

3) Determination of the immediate deliberation

In a lawsuit fraud, the judgment of the court, which is the defrauded, should have the content and effect in lieu of the victim’s dispositive act. Thus, when the contents of the judgment conform to the intent of the other party to the lawsuit, it cannot be said that there was an act of delivering property by mistake, and thus, it does not constitute a crime of fraud in lawsuit (see Supreme Court Decisions 2001Do3993, Nov. 9, 2001; 2006Do7376, Jan. 25, 2007).

As to the instant case, in collusion with the Defendants, and Co-Defendant 1, Defendant 1 filed a lawsuit of objection against Co-Defendant 1, etc. of the first instance trial, and Defendant 1 received a favorable judgment without pleadings by deeming that Co-Defendant 1, etc. failed to submit a written reply and led to the intent of Co-Defendant 1, etc. of the first instance trial, which is the other party to the lawsuit, and the judgment denying compulsory execution based on the above promissory note No. 1, etc. against Defendant 1, by Co-Defendant 1, etc. of the first instance trial, cannot be deemed as having been deemed as having the content and effect as substitute for the act of disposal by the victim Non-Party 7, etc., who is the creditors of the first instance trial, such as Co-Defendant 1

Therefore, this part of the Defendants’ assertion is with merit.

(b) Points on evasion of compulsory execution;

1) Defendant 2

The crime of evading compulsory execution stipulated in Article 327 of the Criminal Act refers to the concealment of property to a person who executes compulsory execution by means of impossibility or difficulty of discovering the property. It includes not only cases where the location of the property is unknown but also cases where the ownership of the property is unknown (see Supreme Court Decision 2005Do4522, Oct. 13, 2005).

As to the instant case, Defendant 1 agreed to be liable to the victim Nonindicted 7, etc. within the scope of the dividend claim, and prepared a false confirmation of debt repayment even though Defendant 1 did not have received a debt repayment, and thereafter filed a lawsuit of objection to the instant claim, and thereby made Defendant 1 revoke the auction procedure on the instant site constitutes the concealment of property as provided in Article 327 of the Criminal Act, since it is impossible or difficult to discover property, and thus, Defendant 2’s allegation on this part is without merit.

2) Defendant 1

The court below duly adopted and examined the following facts. ① The non-indicted 1 filed a lawsuit against the defendant 1, etc. on May 22, 2007 with the court 206 combined 74827, and sentenced the court in favor of the defendant 1 to the effect that "the defendant 1 would pay 310,000,000 won and damages for delay". The above judgment became final and conclusive on June 15, 2007. ② The defendant 2 had the investigative agency to enter into the auction procedure from the court below to the court below that the non-indicted 1 would not have any balance between the husband 1 and the non-indicted 2's claim and the non-indicted 3's statement on the auction procedure. The non-indicted 2's statement on the non-indicted 9's claim that the non-indicted 1 would not have any effect on the non-indicted 1's withdrawal of the auction procedure, and the defendant 1's statement on the non-indicted 1's claim that the non-indicted 2's claim would have been withdrawn.

Therefore, this part of Defendant 1’s assertion is without merit.

C. The point of quasi-indecent act

Comprehensively taking account of the evidence duly admitted and examined by the court below, it is possible to fully recognize the fact that the defendant committed an indecent act against the victim non-indicted 11 by using and rhyming the victim non-indicted 11, who was locked as stated in the judgment of the court below, and walking with the face. Thus, this part of the defendant 1's assertion is without merit.

3. Conclusion

Therefore, the appeal by the Defendants as to the fraud among the facts charged in the instant case is with merit, and the part of the judgment of the court below which rendered a single sentence by deeming this part and the remaining facts charged as concurrent crimes under the former part of Article 37 of the Criminal Act or concurrent crimes under the former part of Article 37 of the Criminal Act cannot be exempted from the reversal in its entirety. Thus, without examining the Defendants’ assertion of unfair sentencing, the part of the judgment of the court below as to the Defendants among the facts charged in the instant case is entirely reversed under Article

The summary of the defendants' criminal facts and their evidence recognized by this court is as stated in each corresponding column of the judgment of the court below, except for the deletion of "the above court division which induces the judges and believed them to be true" in the 3th 19th 19th 3th 3th 18 and 19th 3th 21th 3th 21th 4th 4th 1st 4th 1st 4th 4th 1st 1st 1st 19th 19th 3th 3th 3th 19th 3th 3th 19th 1661,00 of the site price of this case and simultaneously acquires property benefits equivalent to 163th 61,00

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendants: Articles 327 and 30 (Selection of Imprisonment) of the Criminal Act

B. Defendant 1: Articles 299 and 298 of the Criminal Act.

1. Aggravation for repeated crimes;

Defendant 1: Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant 1: The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act, the proviso of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010)

Considering the fact that the nature of the crime of evading compulsory execution of this case is not good, strict punishment against the Defendants is required, but on the other hand, Defendant 1 agreed with the victim non-indicted 11 at the trial, the degree of the Defendants’ participation in the crime of evading compulsory execution of this case, the Defendants’ age, character and conduct and environment, motive, means and consequence of the crime, etc., and the conditions of sentencing specified in the arguments of this case, such as the circumstances after the crime, shall be determined as ordered.

The summary of this part of the facts charged is the same as that of the above 2-A(1). As seen in the above 2-A(3), since it constitutes a case that does not constitute a crime, it should be pronounced not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act. However, as long as the defendant is found guilty of a crime of evading compulsory execution which is related to such concurrent crimes, it shall not be pronounced not guilty in the disposition

Judges Lee Jae-young (Presiding Judge)