(영문) 대법원 2015.6.23. 선고 2013도5517 판결

The crime of evading compulsory execution under Article 327 of the Criminal Act is at risk of undermining creditors by concealing, destroying or transferring property or by bearing false debts for the purpose of evading compulsory execution under the circumstances in which creditors are showing the attitude to institute a lawsuit for compulsory execution, provisional seizure, or provisional disposition under the Civil Execution Act in reality as a dangerous crime. In other words, the crime of evading compulsory execution under Article 327 of the Criminal Act is established where creditors are at risk of undermining creditors by concealing, destroying, falsely transferring property, or bearing false debts. It does not necessarily mean that the act of causing damage to creditors or taking certain profits is not established, and where the act of bearing false debts, etc. is performed for the purpose of evading compulsory execution under the circumstances in which compulsory execution is likely to be practically carried out, barring any special circumstances, it shall be deemed that there is a risk of undermining creditors, and there is a little other property on the part of debtors (see, e.g., Supreme Court Decision 2007Do458

According to the reasoning of the lower judgment, the lower court found the Defendant not guilty of the facts charged in the instant case on the ground that, in light of the following circumstances: (a) as of February 11, 2011, the Plaintiff secured real estate equivalent to KRW 53,772,590 as collateral; (b) the Defendant’s act did not pose a risk of undermining the obligee’s creditor; and (c) the Defendant’s act did not constitute the risk of undermining the obligee’s creditor; and (d) in addition to the property that the Defendant transferred to G, U.S. forest land price of KRW 10,488m and KRW 9,660,360; and (e) the real value of each real estate appears to be higher than the officially assessed land price of KRW 9,60,360.

However, according to the reasoning of the lower judgment and the evidence cited by the lower court, the Defendant was liable for the payment of KRW 75 million to H based on the Seoul District Court Decision 2002 Gaz51475, and the amount calculated by the rate of 10% per annum from January 30, 200 to September 7, 2002, and 25% per annum from the following day to the date of full payment, and the Defendant was also liable for the same amount of debt to Nonindicted W.

Therefore, even if the principal and interest of H’s bonds at the time of February 11, 201, even if the principal and interest on the bonds are assessed against H, the total amount of KRW 74,414,390 (= KRW 53,772,590 + KRW 10,981,440 + KRW 9,660 + KRW 9,360) of the Defendant’s residual property value as well as the Defendant’s remaining property value, considering the fact that the Defendant’s act does not pose a risk of undermining the obligee, even if it is predicted that the actual value of each of the above residual property is higher than the officially assessed individual land price, on such grounds alone.

Nevertheless, the lower court determined otherwise that the Defendant’s act does not pose a risk of undermining the obligee due to the existence of sufficient property to secure the obligee’s execution. In so determining, the lower court erred by misapprehending the legal doctrine on the crime of evasion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.