[1] The method of examining the crime of fraud of the borrowed money against the debtor who was exempted through the personal bankruptcy and exemption system

[2] The case holding that in a case where the defendant who was prosecuted as a crime of fraud of borrowed money was declared liable for exemption by filing a petition for bankruptcy, if the defendant borrowed money from many persons from two to forty years before the bankruptcy petition and used money as debt repayment and living expenses, etc., constitutes a crime of fraud

[1] One of the main objectives of the Debtor Rehabilitation and Bankruptcy Act is to provide the debtor's property for the distribution of bankruptcy at the time of the declaration of bankruptcy. However, in order to coordinate the legal relations of interested parties, such as the creditor, etc. and prevent the abuse of the bankruptcy system, the court may dismiss a petition for bankruptcy, and in cases falling under any of the subparagraphs of Article 564 (1) of the same Act, the court may refuse the immunity, and in cases falling under any of the subparagraphs of Article 566 of the same Act, including "right to claim for damages caused by an intentional act by the debtor," and in cases falling under any of the subparagraphs of Article 566 of the same Act, any of the subparagraphs of Article 566 of the same Act, including "right to claim for damages caused by the debtor's property belonging to the bankrupt estate," and in cases where the debtor obtains the exemption of his/her personal liability through a final and conclusive judgment, such as concealment or destruction of the debtor's property under Article 569 of the same Act, and thus, it is required that the debtor be exempted from the discharge system of fraud.

[2] The case holding that in a case where the defendant who was prosecuted as a crime of fraud of borrowed money was declared liable for exemption by filing a petition for bankruptcy, if the defendant borrowed money from many persons from two to forty years before the bankruptcy petition and used money as debt repayment and living expenses, etc., constitutes a crime of fraud

[1] Article 347(1) of the Criminal Act; Articles 309, 564(1), 566, and 569 of the Debtor Rehabilitation and Bankruptcy Act / [2] Article 347(1) of the Criminal Act

Defendant

Defendant

Attorney Lee Young-soo

Seoul Southern District Court Decision 2007No1126 Decided September 19, 2007

The appeal is dismissed. 65 days out of detention days after the appeal shall be included in the original sentence.

The grounds of appeal are examined.

1. According to the records, the defendant asserted only unfair sentencing in the court below as the grounds for appeal. Thus, the court of final appeal may not assert the violation of the rules of evidence, incomplete deliberation, or misapprehension of legal principles

Furthermore, ex officio review of the judgment of the court below does not seem to have any illegality that may affect the judgment of the court below for the following reasons.

One of the main objectives of the individual bankruptcy and exemption system under the Debtor Rehabilitation and Bankruptcy Act (hereinafter referred to as the "Act") is to provide the conditions in which both the debtor's property was suspended from office for dividends for bankruptcy at the time bankruptcy is declared bankrupt, but he/she is under pressure due to his/her obligation prior to the declaration of bankruptcy or efforts for economic rehabilitation in the future without breaking or breaking his/her will. However, in order to coordinate the legal relations of interested parties, such as creditors, etc. and prevent abuse of the bankruptcy system, the court may dismiss the petition of bankruptcy when it is deemed that the petition of bankruptcy is not bona fide or constitutes abuse of the bankruptcy procedure pursuant to Article 309 of the Act. In cases falling under any of the subparagraphs of Article 564 (1) of the Act, the court may deny the immunity, and the claim under each subparagraph of Article 566 of the Act, including "right to claim damages caused by an intentional act by the debtor," is excluded from the discharge, and it is required that the result of the debtor's individual rehabilitation exemption system can be excluded from the discharge system through a prush and bankruptcy decision of the debtor.

Even if following the above legal principles, the records of this case revealed the following facts: the defendant filed a petition for bankruptcy on May 8, 2006 and was declared bankrupt on September 15, 2006; and the decision of exemption on March 23, 2007 became final and conclusive on April 8, 2007 upon receipt of the decision of exemption from liability; however, the defendant cannot be deemed to have erred in the misapprehension of legal principles as to the crime of fraud, as alleged in the grounds of appeal, since he did not have any property owned by the former husband around April 2001 and did not have any property owned by another, even if he borrowed all money without any intention or ability to repay it, even if he did not have any property owned by the former husband, he was unable to file a petition for bankruptcy from around April 2004 and 40 days before March 28, 2006.

2. In addition, under Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only for a case on which death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. As such, in this case where the defendant was sentenced to a minor imprisonment for not less than eight months, the grounds that the amount of the punishment is unreasonable cannot be

3. Therefore, the appeal shall be dismissed and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)