The establishment of a provisional registration and a crime of evading compulsory execution, for which a false obligation has been made (negative)

In a case where an obligee’s right is the claim for share transfer and is not a monetary claim, the fact that the obligor assumes a false monetary obligation alone does not constitute any infringement on the execution of the obligee’s right for share transfer, and provisional registration is only the effect of priority preservation for principal registration, and thus, the obligor bears a false monetary obligation and has made a provisional registration alone does not constitute a crime of

Article 327 of the Criminal Act

Supreme Court Decision 67Do1166 Decided December 18, 1967, Supreme Court Decision 70Do643 Decided May 12, 1970

Defendant 1 and one other

Attorney Lee Dong-ok

Seoul Criminal Court Decision 81No3122 delivered on November 4, 1981

The judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.

The Defendants’ Second Grounds of Appeal are examined.

(1) According to the reasoning of the judgment of the court of first instance maintained by the court below, with regard to the share of KRW 1382/3951 of the land of this case owned by Defendant 1, the first instance court acknowledged that, after the judicial compromise was formed between the above defendant and the non-indicted 1, the above defendant and the non-indicted 1, and the non-indicted 1, 2, it was judged in favor of the above association by filing a lawsuit claiming the transfer registration of the above shares against the non-indicted 1 and the court of second instance. Defendant 1, in collusion with the other defendant 2, who had concerns over concern that the above heat and the small light would act in subrogation of the above defendant's right to claim the transfer registration of shares in accordance with the composition of the above association, the above defendant would trade part of the land of this case at KRW 101,000,000 and received KRW 100,000,000 on that day by preparing a false promise to sell ownership transfer registration in the future of the defendant.

(2) However, the right of Nonparty 1, a creditor, is a claim for the registration of transfer against the share of 1382/3951 of the instant land, and is not a monetary claim. Thus, the fact that Defendant 1 bears a false monetary obligation as stated in the above holding cannot be deemed as an infringement on the execution of the above creditors’ claim for the registration of transfer of shares.

However, if a provisional registration made in accordance with the above false debt burden hinders the above creditors from realizing their rights, the separate issue or provisional registration is only the effect of preserving the order for the principal registration, and thus the provisional registration has been made does not constitute any obstacle to the execution of the above creditors' right to claim the transfer of shares (see, e.g., Supreme Court Decisions 67Do1166, Dec. 18, 1967; 70Do643, May 12, 1970).

(3) Ultimately, even if Defendant 1 bears a false obligation as at the time of the original judgment and made a provisional registration against Defendant 2, the court below interpreted otherwise despite the fact that the above creditors did not constitute a crime of evading compulsory execution, and thereby, erred by misapprehending the legal principles on the elements of the crime of evading compulsory execution and the validity of provisional registration, which affected the conclusion of the judgment, and thus, it is reasonable to discuss

(4) Therefore, without examining other grounds of appeal, we reverse the judgment below and remand the case to the Panel Division of the Seoul Criminal Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Lee Sung-soo (Presiding Justice)