Defendant

Defendant

The highest court and the preventive court shall hold a public trial.

Law Firm Mailing, Attorney Park Jae-ok

Incheon District Court Decision 2014 High Court Decision 840 Decided October 29, 2014

The judgment of the court below is reversed.

The defendant is innocent.

1. Summary of grounds for appeal;

Since the Defendant notified Nonindicted Party 1 (the Nonindicted Party: the Nonindicted Party) of all the provisional seizure of corporeal movables, and concluded a contract for acquisition or transfer of the right (facilities) to the ○○○○○○○○○○○○○○ business establishment, the Defendant did not impair the effectiveness of the compulsory disposition that

2. Summary of the facts charged

The Defendant owned 128 points of goods not on the market price, which are stored in the “○○○○○○○” business establishment located in Bupyeong-si, Seocheon-si ( Address omitted).

On June 27, 2013, Non-Indicted 2 attached the goods at the defendant's business establishment on June 15:38, 2013 with the delegation of the execution by Non-Indicted 3 to Non-Indicted 3, the execution officer of Non-Indicted 2, who belongs to the Incheon District Court's Busan District Court, seized the said goods and attach a seizure mark to the said goods.

However, around July 31, 2013, the Defendant concluded a contract with Nonindicted Party 1 to acquire or transfer rights (facilities) and sold the said goods together, thereby impairing its utility.

3. Determination

(a) Facts of recognition;

The following facts may be acknowledged in full view of the evidence duly adopted and examined by the court below:

(1) Nonindicted 3 filed an application for provisional attachment against all corporeal movables owned by the Defendant at the “○○○○○○○○○○○○○○○○○○○○ store located in Bupyeong-gu, Seoul (hereinafter “instant store”)” as a preserved claim against the Defendant (Seoul District Court Decision 2013Kadan1504, Jun. 14, 2013), and the said court rendered a ruling of accepting Nonindicted 3’s application (hereinafter “decision of provisional attachment”).

(2) On June 27, 2013, the enforcement officer affiliated with the Busan District Court’s Busan District Court’s Branch provisionally attached one of the two air conditioners, two air conditioners, 30 tables, 90 chairss, one electronic halog 1, one set, one set, one set, and one credit card device, and attached a seizure mark.

(3) On July 31, 2013, the Defendant: (a) transferred to Nonindicted Party 1 the entire facilities in the instant store (excluding personal goods, musical instruments, and sound facilities) in the amount of KRW 105,00,000 for premiums; (b) known that the instant corporeal movables were provisionally seized in some of the instant corporeal movables in the instant store; and (c) stated that the value of the corporeal movables provisionally seized would be settled by means of either giving rise to the value of the things or newly selling them.

The Defendant received KRW 93,00,000,000, in total, from Nonindicted Party 1 on July 31, 2013, and KRW 80,000,000 on September 10, 2013, as part of the said premium, from Nonindicted Party 1 as part of the said premium.

(4) On August 12, 2013, the Defendant received a report on a change in the location of corporeal movables to the effect that “to move the seized corporeal movables to the entrance stairs for repairing a shop” at the enforcement office of the Incheon District Court.

(5) On September 16, 2013, Nonindicted Party 1 prepared and delivered a written statement to the management office of the instant store, stating, “The principal leased the instant store, but the former lessee (○○○○○○○○○○○○○○○: the Defendant) was unable to obtain business permission and business succession due to the legal personal circumstances of the former lessee (e.g., shock and bad weather in the instant store), so the Defendant and the principal agreed to obtain business permission and business succession at the time of the completion of legal resolution of the Defendant.”

(6) The Defendant operated the instant store by October 1, 2013, and transferred the keys of the instant store to Nonindicted 1 on October 2, 2013. However, the dispute between the Defendant and Nonindicted 1 arises between the Defendant and Nonindicted 1, and on the grounds that the building manager did not succeed to the business license, Nonindicted 1 controlled Nonindicted 1’s access to the instant store, and Nonindicted 1 failed to operate the instant store.

B. Determination

(1) At the time of transferring the instant facility to Nonindicted 1, the Defendant notified Nonindicted 1 that some corporeal movables were provisionally seized, and the corporeal movables provisionally seized were scheduled to continue to be kept in the instant store until legal issues are resolved.

(2) Although the execution of an order of provisional seizure has the effect of prohibiting the debtor from selling, selling, donating, or any other disposition on the object of provisional seizure, the effect of the order of provisional seizure prohibition is not absolute invalidation of the debtor's disposal act, but is only invalid in relation to the creditor of provisional seizure and the person who participated in the execution before the disposal act, and therefore, it cannot be deemed that the defendant, who is the debtor of provisional seizure, merely sold the object of provisional seizure to non-indicted 1 under the conditions as referred to in

(3) Therefore, the defendant's assertion of mistake is justified.

4. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following is ruled again after pleading.

The summary of the facts charged of this case is as stated in Paragraph 2, which constitutes a case where there is no proof of crime as stated in Paragraph 3, and thus, a defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges Jeong-ho (Presiding Judge)