In case of compulsory execution based on a notarial deed of a promissory note, which has ceased to exist in a causal relationship, the nature of fraud (affirmative)

A crime of fraud is committed if a debtor carries an authentic copy of a promissory note in a notarial deed stating that the debtor has consented to compulsory execution, even though the relationship between the cause of the notarial deed ceases to exist, if it is enforced on the basis of the notarial deed.

Article 347(1) of the Criminal Act

Supreme Court Decision 87Do2394 delivered on April 12, 198 (Gong1988, 862) Supreme Court Decision 92Do2218 delivered on December 22, 1992 (Gong1993Sang, 655)

Defendant

Defendant

Seoul District Court Decision 97No7138 delivered on May 12, 1999

The appeal is dismissed.

The grounds of appeal are examined.

Even though the underlying relationship between the obligor and the authentic copy of a promissory note with respect to the authentic deed of a promissory note, which states that the obligor has consented to compulsory execution, if a compulsory execution is conducted on the basis of this, it constitutes fraud (see Supreme Court Decision 92Do2218, Dec. 22, 1992).

Examining the evidence specified in the judgment of the court of first instance as cited by the court below in light of the records, the defendant lent one promissory note owned by the non-indicted corporation as representative director (hereinafter referred to as the "non-indicted corporation") on June 22, 1992 in order for them to offer real estate owned by the non-indicted corporation as a collateral to the wallsan Mutual Saving and Finance Company for the payment of the above construction price, and to use money in borrowing money under the name of the above cargo delivery company in the name of the non-indicted corporation, the amount of 270 million won in the name of the non-indicted corporation, and one promissory note as of September 20 of the payment date, and the amount of 270,000,000,000,000 won jointly issued by the Gu administration and the non-indicted Kim Hong-chul to the above non-indicted corporation's order for commencing a compulsory auction, and thus, the defendant did not have any error in the misapprehension of the legal principles as to the above non-indicted corporation's right to request for a compulsory auction and return of this case.

In addition, according to the records, the defendant submitted an application for compulsory auction on or around February 1993, it can be recognized that the non-indicted company had a claim for construction price due to the construction of the above building in the Gu administration at the time of the submission of the above application for compulsory auction, but on the other hand, Kim real Hong is a joint issuer with the purport that although the above construction of the building remains in the Gu administration, it does not have any relation with the above construction of the Gu administration, and it was merely a joint issuer with the purport that it was guaranteed on the promissory note issued in the above circumstances, and the defendant was well aware of such fact. Thus, the argument in the grounds of appeal that the defendant cannot be viewed as having a criminal intent

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Cho Cho-Un (Presiding Justice)