In the case where a landowner has the right to remove a building and to request the delivery of land against the owner of the building on the ground, whether the act by the owner of the building, which completed the establishment registration of a mortgage on the building on the building on the ground of false debt, constitutes a crime of evasion of compulsory execution (negative), and whether the same applies to the case where the lessor, by exercising the right to demand the purchase of a building by the owner

If a creditor’s claim is not a monetary claim, but a claim for the removal of a building and the claim for the delivery of a land owned by a landowner against the owner of the building on the ground, the mere fact that the owner of the building, who is an obligor, bears a false monetary liability to a third party and completed a registration of establishment of a neighboring mortgage on the building with respect to the secured obligation cannot be deemed to constitute a cause directly impossibility of compulsory execution based on the right to remove the building and request for the delivery of the land. Therefore, a crime of evasion of compulsory execution is established. The same applies to a case where a transaction relation between the owner of the building and the landowner was established by exercising the right to demand the purchase of the building under Article 643 of the Civil Act against the landowner, who is a lessor, as a lessee, and the landowner has the right to demand the transfer of the ownership of the building and the right to demand the surrender thereof against the owner of the building.

Article 327 of the Criminal Act

Defendant 1 and three others

Prosecutor

Attorney Gangwon-won

Suwon District Court Decision 2007No570 decided Feb. 14, 2008

The appeal is dismissed.

If a creditor’s claim is not a monetary claim, but a claim for the delivery of a building owned by a landowner against the owner of the building on the ground, the mere fact that the owner of the building, who is an obligor, bears a false monetary liability to a third party and completed a registration of establishment of a neighboring mortgage on the building with respect to the secured obligation does not directly constitute a cause for impossibility of compulsory execution based on the right to remove the building and request for the delivery of land. Therefore, a crime of evasion of compulsory execution is established. The same applies to cases where a transaction relation between the owner of the building and the landowner were established by exercising the right to demand purchase of the building under Article 643 of the Civil Act against the landowner, who is a lessor, as a lessee, by exercising the right to demand the purchase of the building under Article 643 of the Civil Act, and the owner of the building bears a false monetary liability against the third party, and the owner of the building has completed a registration

The court below, after compiling the adopted evidence, found the facts as stated in its reasoning. As to the evasion of compulsory execution by Defendant 2 and 4 due to the registration of the establishment of a neighboring mortgage in Defendant 4, the court below rejected the judgment of the court below on the ground that even if Defendant 2 sought the removal of the building of this case and delivery of land through a lawsuit against Defendant 2, who is the owner of the building of this case on the ground that such act does not interfere with Nonindicted 1’s removal of the building of this case and execution of the right to request delivery of land, it does not interfere with the execution of the right to demand delivery of the right to demand delivery of land. The court below erred in the misapprehension of legal principles as to the evasion of compulsory execution by Defendant 2, 1, and 3 due to the registration of the establishment of a neighboring mortgage in Defendant 3, as the right to claim ownership transfer of the building of this case which was already extinguished due to payment, and it did not err in the misapprehension of legal principles as to the above establishment of a right to demand sale of the building of this case on the ground of this case.

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)