Defendant

Defendant

Jina Kim

Changwon District Court Decision 2006Ra1114 Decided August 11, 2006

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

Where the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting 60,000 won into one day: Provided, That the fractional amount shall be one day.

The charge of evading compulsory execution among the facts charged in the instant case is acquitted.

1. Summary of grounds for appeal by the defendant;

Considering the background leading up to this case and the background leading up to this case, the sentence of the court below is unreasonable.

2. Summary of the facts charged in this case and the judgment of the court below

The summary of the facts charged of this case is as follows: “The defendant shall not register the real right to real estate in the name of the title trustee pursuant to the title trust agreement, but he shall not file a lawsuit with the defendant on May 4, 1999 against the defendant at the Seoul Guarantee Insurance Co., Ltd. claiming compensation amounting to KRW 53,184,115 on July 20, 199, for the purpose of evading the compulsory execution against the creditor’s property, such as where the judgment becomes final and conclusive upon winning all of the plaintiff's winning judgment, etc., at the Msan-si registry located in the central Dong, Busan-si (hereinafter "the apartment of this case") around March 18, 2004, purchased the defendant from the Msan-si (hereinafter "the apartment of this case"), and the Msan-si (hereinafter "the apartment of this case"), and thereafter, the defendant's mother and the above apartment of this case were concealed after having agreed to register the ownership transfer in the name of the woman under the name of the non-indicted 2.

3. Judgment of the court below

A. Before determining the Defendant’s above assertion of unfair sentencing, it is problematic whether the Defendant constitutes a crime of evading compulsory execution against the instant apartment, rather than purchasing the instant apartment as the money owned by the Defendant, but purchasing the loan borrowed in the name of the Defendant’s mother Nonindicted 2 and the security deposit in the name of the Defendant’s wife, and completed the registration of ownership transfer in the name of the said Nonindicted 2.

B. The crime of evading compulsory execution under Article 327 of the Criminal Code is established when a creditor, under objective conditions that are likely to obtain compulsory execution or provisional disposition of provisional seizure under the Civil Procedure Act, is committed when he/she damages the creditor by concealing, destroying, transferring or falsely bearing his/her property for the purpose of evading any compulsory execution under the state where the creditor is showing the attitude to institute a lawsuit on the merits or on the preservation of the property. The "property" which is an object of concealment, destruction, or false transfer should be the property of the debtor, which is an object of compulsory execution by the creditor. Thus, the property owned by a third party that is not likely to be enforced by the creditor is not a subject of compulsory execution. Since the subject of the crime of evading compulsory execution is not restricted to the debtor, a third party other than the debtor is also the subject of the crime of evading compulsory execution. However, in light of the elements of the crime of evading compulsory execution as mentioned above, in order to establish the crime of evading compulsory execution by concealing the property, the creditor at least bears the obligation to the creditor, and the creditor appears to have a state of compulsory execution or filing a lawsuit against the debtor.

C. According to the records, around February 18, 2004, the defendant purchased part of the purchase price of the apartment of this case directly from the non-indicted 1 in the above non-indicted 2's name. Thus, the owner of the apartment of this case is not the defendant but the above non-indicted 2 and the defendant acquired ownership. Thus, the apartment of this case cannot be deemed as the property owned by the debtor, which is the object of the concealment of concealment in the crime of evading compulsory execution, and there is no

4. Conclusion

Therefore, the judgment of the court below is reversed, and it is again decided as follows.

Although the Defendant had not registered the real right to real estate under the name of the title trustee under the title trust agreement, the Defendant had to do so.

On March 18, 2004, the registration of ownership transfer was made in the name of the woman after the agreement with Nonindicted 2, the defendant's mother, to title trust the apartment in the name of the non-indicted 2 and the above apartment in the name of the non-indicted 2 while purchasing the apartment of this case from the non-indicted 1.

1. Part of the defendant's legal statement

1. Examination protocol of the accused by prosecution;

1. The police statement of Nonindicted 3

1. A certified copy of the register;

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

Article 7 (1) 1, and Article 3 (Selection of Imprisonment)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

The summary of the facts charged as to the crime of evading compulsory execution of this case is as shown in the above Paragraph 2., and as seen in the above Paragraph 3., the defendant is acquitted pursuant to Article 325 of the Criminal Procedure Act, since there is no proof of crime.

Judges Yoon Tae-tae (Presiding Judge)