Defendant

Defendant

Kim Gmp

Attorney Cho Jong-sung

Jeonju District Court Decision 2009No351 Decided December 15, 2009

The judgment of the court below is reversed.

Defendant shall be punished by a fine of four million won.

When the defendant fails to pay the above fine, the defendant shall be confined in the workhouse for a period calculated by converting 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

① Even though the real estate held in trust by Nonindicted 3 Limited Liability Company (Supreme Court Decision 201Da13349, May 2, 2011) was not the real estate owned by the Defendant, the lower court found the Defendant guilty of the facts charged in this case by misunderstanding that the real estate in this case was owned by the Defendant, which affected the conclusion of the judgment by misunderstanding of facts.

② As the Defendant actually transferred the instant real estate to the foregoing Nonindicted Company 1, the lower court recognized it as hiding and convicted of the facts charged of this case. In so doing, the lower court erred by misapprehending the facts or misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

② At the time of committing the instant facts charged, the auction procedure for the instant real estate had already been in progress, and the instant real estate was established with prior priority mortgage and provisional registration of Nonindicted 12, the amount of credit, and even if the creditors seize the instant real estate, there was little possibility that the Defendant would be distributed in the auction procedure. Therefore, even though the Defendant did not intend to evade the above creditors’ compulsory execution, the lower court convicted the Defendant of the facts charged in this case. In so doing, the lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The sentencing of the lower court (eight months of imprisonment) is too unreasonable.

2. Determination

A. Ex officio determination

In the facts charged in this case, the prosecutor tried to revise the bill of amendment to the indictment that "the defendant transferred the above land and site to non-indicted 1 company for the purpose of evading compulsory execution and thereby making it difficult to enforce compulsory execution," among the facts charged in this case, "the defendant concealeds property by concealing the above land and site to the non-indicted 1 company for the purpose of evading compulsory execution, and damaged the creditors." Since this court permitted it, the judgment of the court below was no longer maintained. However, the defendant's assertion of misunderstanding of facts against the judgment of the court below is still subject to the judgment of the court of this case, even though there are reasons for ex officio destruction, and this is examined.

B. Judgment on misconception of facts and misapprehension of legal principles

(1) Whether the defendant is liable

According to the evidence duly examined and adopted by the court below and the statements by Non-Indicted 4 and 2 of Non-Indicted 2 of the party witness: (1) around 1998, the defendant purchased the land among the real estate of this case and lent the ownership transfer, and thereafter, constructed the building of this case at his own expense and owned the real estate of this case; (2) the name of the real estate of this case was changed in the name of Non-Indicted 3 in the future of the non-Indicted 3, which he actually owned and managed; (3) the defendant did not register the real estate of this case as his own owner who was bad credit holder for the convenience of lending; and (4) the defendant directly determined and processed the management and disposal of the real estate of this case, such as the lease or provision of the real estate as security, since the real estate of this case is substantially the defendant's responsible property, the defendant's assertion of mistake in facts is without merit.

Whether it is a false transfer or not

The following circumstances acknowledged by the evidence duly examined and adopted by the court below and the witness of the court of first instance, namely, ① the defendant established a limited liability company to change the title of the real estate of this case around July 8, 2008, when the auction on the real estate of this case was in progress, ② the defendant was unable to bear expenses for the transfer of the real estate of this case through Nonindicted 4, his creditor, and on August 2008, Nonindicted 4 was recorded as the representative director of the non-indicted 1 limited liability company, and the defendant did not have any change in the title of the non-indicted 1 limited liability company (the non-indicted 4 was retired from the position of the representative director of the non-indicted 1 limited liability company after the defendant repaid all debts to the non-indicted 4, and the non-indicted 8 was registered as the representative director of the non-indicted 1 limited liability company in the name of the non-indicted 2, as stated in the above agreement, and there was no change in the sale contract of this case between the non-indicted 1 and the non-indicted 1 limited liability company.

【Reference or Intention】

When there is a risk of undermining creditors due to the act such as false transfer and concealment, the crime of evading compulsory execution is established immediately, and in reality, it must cause damage to creditors, but the crime of evading compulsory execution is not established (see, e.g., Supreme Court Decision 2001Do4759, Nov. 27, 2001). If the defendant falsely transferred the real estate of this case, which is his own responsible property, and completed the registration of transfer of ownership with the intention of changing the name of ownership to the non-indicted 1 limited liability company, the trustee of title, and the third party, the purpose and the intention of the defendant's compulsory execution shall be sufficiently recognized, and if there is no possibility that the creditors can obtain the satisfaction of the claim by seizing the real estate of this case as stated in the facts charged of this case, the defendant's assertion on this point is without merit.

3. Conclusion

Therefore, the judgment of the court below is reversed under Article 364 (2) and (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, on the ground that there is no ground for reversal of facts by the defendant, but the judgment below is reversed, and it is again decided as follows.

The summary of the facts charged and the evidence recognized by this court is as stated in the corresponding column of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

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

Article 327 (Selection of Fine)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Even though it is recognized that the creditors did not reach an agreement with the creditors, the amount of claims of creditors is high, and the creditors strongly want to punish the defendant, in light of the rights to the real estate in this case and the bid price of the real estate in this case, even if the creditors did not commit the crime in this case, the amount that the creditors are able to obtain satisfaction of claims through the real estate in this case is extremely small, and the defendant does not have the same kind of criminal record, and the sentencing factors in the records and arguments in this case, such as the age, character, environment, criminal record, criminal record, motive, means and result of the crime in this case, etc., shall be determined as ordered by taking into account all the factors of punishment as shown in

Judges Kim Byung-soo (Presiding Judge)