[1] Whether a crime of evading compulsory execution is established where the existence of a claim by a compulsory execution creditor is not recognized (negative), and whether a crime of evading compulsory execution is established in the case of a claim extinguished by a set-off (negative)

[2] In a case where the defendant was prosecuted for evading compulsory execution by concealing the sales claim of the gas station under the name of Gap to the sales claim of other gas stations by settling the payment credit card of the gas station which was leased and operated under the name of Eul, and by processing it with the credit card terminal of other gas stations operated separately, and thereby changing the sales claim of the gas station under the name of Eul to the sales claim of other gas stations, the case affirming the judgment below holding that the crime of evading compulsory execution is not established on the grounds that Gap declared his/her intention to offset the sales claim of the gas station under Gap by the refund claim of lease deposit, since Eul declared his/her intention to offset it with the refund claim, it was not acknowledged at

[1] The crime of evading compulsory execution under Article 327 of the Criminal Act is mainly protected by the protection of rights of creditors. Therefore, the existence of a creditor’s right, which serves as the basis for compulsory execution, is the elements for the crime of evading compulsory execution. Therefore, if the existence of a claim is not recognized, the crime of evading compulsory execution is not established. Therefore, in order to acknowledge a guilty of evading compulsory execution, the existence of a claim should first be deliberated and determined as to whether there exists a claim, and in a case where it is proved that there is no claim already existed in a civil procedure, the judgment of inconsistency and promotion cannot be made, barring any other special circumstances. Meanwhile, in a case where an expression of intent of offset is declared, each obligation ought to be deemed extinguished retroactively to the amount of equality when set-off can be set off. Accordingly, the existence of a claim that is deemed extinguished due to set

[2] In a case where the Defendant was prosecuted for evading the compulsory execution by Eul, which seized the sales claim of the gas station under the name of Eul, by concealing the sales claim of the gas station under the name of Eul to the sales claim of other gas stations by settling the credit card settlement terminal of the gas station operated separately, and by converting the sales claim of the gas station under the name of Eul into the sales claim of other gas stations, the case affirming the judgment below holding that the crime of evading compulsory execution is not established on the grounds that Eul's claim was not established since the existence of the claim of Eul at the time of the act was not acknowledged, since Eul filed a civil lawsuit against Gap for the payment of the unpaid rent, etc. against Eul, but Gap asserted that it would offset Eul's claim against the refund claim of the deposit for lease, in light of the circumstances where the judgment dismissing Eul's claim was final and conclusive on the ground that Eul's claim for rent, etc. was set off by the amount equal to the refund claim of the deposit for lease at the

[1] Article 327 of the Criminal Code / [2] Article 327 of the Criminal Code, Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 88Do48 Decided April 12, 198 (Gong1988, 864) Supreme Court Decision 2007Do3005 Decided July 12, 2007, Supreme Court Decision 2008Do198 Decided May 8, 2008, Supreme Court Decision 2010Do1015 Decided December 9, 2010 (Gong2011Sang, 179) Supreme Court Decision 201Do5165 Decided September 8, 201 (Gong2011Ha, 2178)

Defendant

Prosecutor

Attorney Yoon Jae-sung

Chuncheon District Court Decision 2010No619 decided January 28, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. The crime of evading compulsory execution under Article 327 of the Criminal Act is the principal legal interest of protecting the rights of creditors. Thus, the existence of a creditor’s right, which serves as the basis for compulsory execution, is the elements for the crime of evading compulsory execution. Therefore, if the existence of a claim is not recognized, the crime of evading compulsory execution is not established (see, e.g., Supreme Court Decisions 88Do48, Apr. 12, 198; 2007Do3005, Jul. 12, 2007). Therefore, in order to acknowledge the crime of evading compulsory execution, in order to determine whether there exists a claim first, it shall be deliberated and determined whether there exists a claim, and in case where it is proved that there is no claim already in civil proceedings, it shall be deemed that there is no inconsistency and promotion from this,

On the other hand, in cases where a declaration of intention of offset has been made, each obligation is considered to be terminated on an equal amount retroactively from the time when the offset can be offset. Therefore, with respect to a claim deemed to be extinguished due to an offset, since the existence of the claim is not recognized after the time when the offset takes effect, the crime of evading compulsory execution is not established.

2. According to the records, in order to secure the claim for unjust enrichment equivalent to overdue rent and rent, etc., it is the charge of evading compulsory execution of the instant case. Although Nonindicted Co. 1 filed a civil lawsuit against Nonindicted Co. 2 for the payment of unpaid rent, etc. against Nonindicted Co. 2 on two occasions from July 8, 2009 to October 8, 2009, the Defendant alleged that the credit card payment from Nonindicted Co. 2 would be offset by the lease deposit money, and that the Defendant did not constitute a set-off against the Defendant’s claim for return of the above credit card deposit against Nonindicted Co. 1, 200. The Defendant’s act of evading compulsory execution against Nonindicted Co. 1, 200, by processing the credit card payment from the △△△△△△△△△△’s credit card station operated separately by the Defendant as the settlement terminal of the credit card payment at the △△△△△△△△△△△△△△△△, etc., which became final and conclusive.

In light of the records, the above judgment of the court below is just as it is in accordance with the legal principles as seen earlier, and there is no violation of law by misapprehending the legal principles as to the establishment of a crime of evading compulsory execution as alleged in the grounds of appeal.

3. The prosecutor filed an appeal against the guilty portion of the judgment below, but the appellate brief did not state the grounds for appeal and did not state the grounds for appeal in the appellate brief.

4. The appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)