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Defendant
A The part of the judgment of the court below against Defendant A shall be reversed.
Defendant
A shall be punished by imprisonment for eight months.
(b).
Reasons
1. Summary of grounds for appeal;
A. (1) As to the first crime at the time of the original adjudication, the corporeal movables subject to the crime of evasion of compulsory execution in the indictment of this case are not specified.
In civil litigation with the victimized company, there was no risk of evading compulsory execution or being subject to compulsory execution. The corporeal movables in the instant golf driving range had been transferred to the first damaged company. In addition, at the time when the judgment in favor of the victimized company became final and conclusive, other creditors had already been unable to enforce compulsory execution of the victimized company by executing the seizure of corporeal movables.
Nevertheless, the court below erred by misunderstanding the facts charged or misunderstanding the legal principles.
(B) As to the second crime at the time of the original trial, even though there was no reason to conceal the monthly sales of the same small amount as the facts charged because the monthly sales, etc. of the instant golf driving range were sufficient, there was an error of misconception of facts that the lower court found the Defendant guilty of this part of the facts charged.
(2) In the course of sentencing: The sentence of the lower court on the following Defendants is too unreasonable.
Defendant
A: Imprisonment for 10 months, 2 years of probation, 120 hours of community service, Defendant B: fine of 5 million won
B. The lower court’s sentence against the Defendants in the grounds of appeal by the prosecutor is too unjustifiable.
2. Determination
A. The judgment of the court below against the Defendants can no longer be maintained, since the prosecutor made an application for changes in the indictment as set forth in paragraph (1) among the facts charged at the trial of the court below, and the members approved the changes in the indictment.
Defendants: (a) in collusion, Defendant A, the representative of Defendant B, on April 30, 2012, newly created a business operator of J, which was a prison guard, and operated the said golf course by entrusting the said golf course to the J.