Defendant 1 and three others

Prosecutor

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Law Firm North Korean Joint Law Office

Suwon District Court Decision 2005 High Court Decision 1966 Decided March 8, 2007

The prosecutor's appeal against the Defendants is dismissed.

1. The facts charged in this case

Defendant 2 is a person engaged in labor, and Defendant 4 was a person who was aware of, and was aware of, Defendant 2’s cosmetic, Defendant 2’s leakage, Defendant 1’s attachment, Defendant 3 was the front wife of Nonindicted 4, Defendant 2, Defendant 2, Defendant 2, the owner of the building related to the building (hereinafter the building in this case, including the lot number omitted), which was a type of the Guluri-dong (hereinafter the building in this case), which was the owner of the building on the ground of the Guluri-dong (hereinafter the building in this case), and Defendant 2, the owner of the building in this case, was filed with the government’s branch of the Seoul District Court on November 18, 2002, and was likely to be subject to compulsory execution, with the aim of evading the lawsuit, such as the delivery of the above land and the removal of the building (hereinafter the building in this case).

A. Defendant 2 or 4 conspired,

On December 24, 2002, there was no fact that Defendant 4 lent approximately KRW 50 million to the above non-indicted 3 over 18 times, and there was no difference between the appraised value of the above building and KRW 26,808,920, and the maximum amount of KRW 22,500,000 in the above building had already been set up one mortgage on December 24, 2002, under the circumstances where the right to collateral security was set up on December 24, 200, the above building was registered on December 24, 200 with Defendant 4 as the maximum amount of debt by the contract to collateral security, KRW 50,00,000, Defendant 2, the debtor, and Defendant 4 as the non-indicted 1; and

B. Defendant 2, 1, or 3 conspired;

On or before September 30, 2004, Defendant 2 received a payment of KRW 30,00,000 from the above non-indicted 1 on or after May 1, 2004, and at the same time made a settlement to implement the registration of ownership transfer of the above building. In fact, the non-indicted 2, a mortgagee of the right to collateral security transferred from the non-indicted 5 with the maximum debt amount of KRW 22,50,000 to the above building, filed a request for auction on or after May 19, 2004 with respect to the above building on or after the payment of KRW 30,00,00 with the above non-indicted 2, a debtor, filed a request for auction on or after October 6, 2004, and the above non-indicted 2 did not transfer the secured debt to Defendant 3 on or after October 1, 2004, the registration of transfer of the right to collateral security was made on or after the transfer of the above building (hereinafter above non-indicted 1).

2. The judgment of the court below

A. As to the facts charged A, the court below found Defendant 2 and 4 not guilty on the ground that: (a) the statement made by Nonindicted 1 in the accusation and the investigative agency on the part of Nonindicted 1 is the content thereof; (b) it cannot be readily concluded that the establishment of the second priority collective security right was made by means of false debt burden; and (c) at the time of the establishment of the said collective security right, Nonindicted 1 was in the state of filing a lawsuit for removal of the above ground buildings owned by Defendant 2 and filing a claim for extradition of the land based on the ownership of the land in the Guluri-dong (number omitted); (d) in such a case, even if the owner of the building who did not have no right to possess the above land additionally set the collective security right on the above building, it cannot be set up against removal of the building and delivery of the land by the said owner;

B. As to the facts charged, the court below also stated as follows. Nonindicted 2, the first priority collective security right holder of this case, was present in this court as a witness and affixed a seal on various documents presented by a certified judicial scrivener at the office of the certified judicial scrivener after receiving the payment of the secured obligation of the above secured obligation from Defendant 1. The documents prepared at that time include a certificate of transfer of the secured obligation, and the specific contents and meaning of the documents were not read in detail at the time. In addition, in light of the above circumstances of repayment of the secured obligation of the secured obligation of the above secured obligation and the preparation of the certificate of transfer of the secured obligation, etc. acknowledged by the legal statement of Nonindicted 2, it cannot be deemed that the transfer of the above secured obligation was made by false assignment of claims, and there is no evidence to acknowledge that the statements made at the investigation agency of Nonindicted 2, the president of the complaint and the statement made at the investigation agency, which correspond to the above facts charged, and in this case, the settlement clause established at the appellate court of the above building and the transfer of ownership cannot be deemed to constitute a compromise of 100.

3. Summary of grounds for appeal;

A. As to the charge A

Defendant 4 rejected the lower court, in light of the fact that Defendant 4, who was Defendant 2’s arbitr Nonindicted 3 and 195, stated that all transactions were made in cash, and that the value of the building of this case, including the maximum debt amount of 69 million won, was merely the maximum debt amount of 2.5 million won, and that Defendant 2 had no special income in light of Defendant 4’s income tax payment, Defendant 4 lent 50 million won to Nonindicted 3, and Defendant 4 did not receive the above loan certificate, and Defendant 4, who was merely Defendant 65 million won, stated that Defendant 4 did not receive interest on the above loan, and that all transactions were made in cash, and that the value of the building of this case, including the right to arbitral, was only the maximum debt amount of 2.5 million won, and that the act of establishing a lease agreement goes against the empirical rule.

In addition, in light of the fact that the lawsuit filed by the victim non-indicted 1 on December 23, 2002, prior to the establishment of the above right to collateral security, the defendants submitted a written reply to the effect that the defendants appointed an attorney-at-law and submitted a defense for claiming the purchase of the building, etc., the court below acquitted the above facts charged even though it is obvious that the defendants established the above right to collateral security, and it is obvious that the defendants established the above right to collateral security.

B. As to the facts charged

Defendant 1 initially borrowed money from Defendant 3 on the source of the payment of non-indicted 2, who is the first right to collateral security in this case. However, Defendant 1 reversed his statement, such as the repayment of consolation money of KRW 30 million to the above Defendant 3. Defendant 1’s transfer of the first right to collateral security to Defendant 3, who was at the auction of the building in this case upon the above non-indicted 2’s request, is against the empirical rule, and it was argued that Defendant 1 was liable to pay consolation money even though he was abandoned, it was against the law of the first right to collateral security, and it was against the law of the evidence that it was assumed that it was the guarantee of consolation money of the non-indicted 2, who was the first right to collateral security in this case. However, Defendant 3 stated that there was no reason to conclude a divorce agreement with the above non-indicted 20,000 won at the time of the preparation of the divorce agreement, and that there was no error in the law of 100,000 won prior to the above settlement and the second right to collateral security.

4. Judgment of party members

A. Factual relations

According to the evidence duly adopted and examined by the court below, the victim is the owner of the site of the building of this case and the defendant 2 concluded a lease contract on the site of the building of this case. The non-indicted 1 brought a lawsuit against the defendant 2 at the Do Government District Court on November 18, 2002 against the non-indicted 2, but lost the first instance court, and at the same time, the court below assessed the non-indicted 2's 30 million won on May 1, 2004 against the non-indicted 1 on the non-indicted 3's request for the transfer registration of ownership on December 4, 2003, and decided that the non-indicted 200 won on the non-indicted 3's request for the second sale of the building of this case and decided that the non-indicted 200 won on December 24, 2009 on the non-indicted 205's request for the auction of this case.

B. Determination

(1) On the other hand, the crime of evading compulsory execution is a danger of undermining creditors by concealing, destroying, falsely transferring property or by bearing false debts with the intention of evading compulsory execution under the objective condition that is practically likely to obtain compulsory execution, provisional seizure, or provisional disposition under the Civil Procedure Act, as a dangerous crime, under the objective condition that the creditor is in danger of being subject to compulsory execution, provisional seizure, or provisional disposition under the Civil Procedure Act. The legal interest of this crime is a creditor’s claim at the stage of exercising the right of compulsory execution by the State.

In addition, Article 263 of the Civil Execution Act provides, with regard to the execution of obligation to express intent, ① when a debtor recognizes or recognizes the establishment of legal relationship, and when a judgment ordering a doctor's statement has become final and conclusive, that judgment shall recognize or recognize the establishment of legal relationship or state his/her intention. ② Where the establishment of legal relationship is recognized or a statement of intention is made after the opposite obligation has been performed, the effect of the execution clause when the execution clause has been granted pursuant to the provisions of Articles 30 and 32.

(2) First of all, we examine the facts charged in the instant case. According to the above facts, at the time of the establishment of the second-class collateral security right, Nonindicted Party 1 sought and demanded removal of the instant building and delivery of land against Defendant 2. Since the act of establishing the right to collateral security on the said building does not interfere with Nonindicted Party 1’s removal of the building and execution of delivery of land, it cannot be deemed to be aimed at evading compulsory execution (the issue of whether the act of the said Defendant constitutes the crime of false entry in the original authenticated deed and the crime of exercising the right to collateral security right on the said building is separate).

(3) Next, we examine the facts charged in the instant case as to Article 2 of the facts charged. Nonindicted 1’s claim against Defendant 2 based on the above protocol is the claim for ownership transfer registration of the instant building. Nonindicted 1 paid KRW 30 million to Defendant 2, and the execution clause was granted pursuant to Article 32 of the Civil Execution Act. Thus, even if Defendant 2, 1, and 3 made a registration of transfer of the right to collateral security in order to pretend that there exists the first priority right extinguished due to repayment, even if Defendant 2, 1, and 3 made a registration of transfer of the right to collateral security in order to conclude that there is the first priority right extinguished due to repayment, there is no obstacle for Nonindicted 1 to enforce compulsory execution (the crime of breach of trust, the crime of false entry in the original copy of a notarial deed, etc., and the crime of exercising the right to collateral security, it cannot be said that there is a danger that Nonindicted 1 would escape compulsory execution, or that it would hinder the above Defendants’ transfer of the right to collateral security.

(4) Therefore, the judgment of the court below cannot be deemed to contain an error of misconception of facts, such as the prosecutor's grounds for appeal.

5. Conclusion

Therefore, since all appeals against the Defendants by the prosecutor are without merit, they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Sung-Dung (Presiding Justice)