In the crime of evading compulsory execution, the meaning of “ciding property” and whether the debtor’s business registration under the name of a third party constitutes the concealment of property by changing the business registration under another third party’s name (negative)

In the crime of evading compulsory execution stipulated in Article 327 of the Criminal Act, the term “covering property” refers to having a person executing compulsory execution impossible or difficult to discover the property. It includes not only the case where the location of the property is unknown but also the case where the ownership of the property is unclear. However, solely on the circumstance that the debtor changed his/her business registration registered in the name of a third party to another third party, it cannot be readily concluded that the change has caused the risk of causing damage to the creditor by making the creditor know the ownership relationship of corporeal movables in the workplace more clearly than the previous one.

Article 327 of the Criminal Act

Supreme Court Decision 2003Do3387 Delivered on October 9, 2003 (Gong2003Ha, 2207) Supreme Court Decision 2005Do4522 Delivered on October 13, 2005

Defendant

Defendant and Prosecutor

Attorney Kang Jon-hun et al.

Jeju District Court Decision 2011No564 decided February 3, 2012

The conviction part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Jeju District Court Panel Division. The prosecutor's appeal is dismissed.

The grounds of appeal are examined.

1. As to the prosecutor's grounds of appeal

In the crime of evading compulsory execution as stipulated in Article 327 of the Criminal Act, the term “covering property” means to make a person executing compulsory execution impossible or difficult to discover the property. It includes not only the cases where the location of the property is unknown but also the cases where the ownership of the property is unclear (see Supreme Court Decision 2003Do3387, Oct. 9, 2003). The mere fact that the debtor changes the business registration registered in the name of a third party and another third party, it cannot be readily concluded that the change causes the risk of causing damage to the creditor by making the creditor know about the ownership of corporeal movables in the place of business more clearly than the previous one from the standpoint of the creditor.

According to the reasoning of the judgment below, the court below reversed the judgment of the court of first instance convicting the defendant of this part of the facts charged on the ground that it cannot be said that there is no evidence to support that the change of the business name of the above convenience store made it difficult for the victim to find out the property of the defendant, on the ground that the change of the above business name of the corporeal movables in the above convenience store cannot be seen as making it difficult for the victim to find out the property of the defendant, on the grounds that the business registration of the ○○ convenience store was made in the name of the non-indicted 1 for the purpose of evading the victim's compulsory execution and reported the closure of the business registration under the name of the defendant non-indicted 2, the defendant's business registration,

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the concealment of the crime of evading compulsory execution.

2. As to the Defendant’s ground of appeal

A. The court below affirmed the judgment of the first instance court that found the Defendant guilty of this part of the charges on the grounds that, in full view of the following: (a) the Defendant’s new business registration under the name of Nonindicted Co. 2, which was the Defendant’s wife, for the purpose of evading the victim’s compulsory execution; and (b) the Defendant concealed the property by making the ownership of the property related to the above restaurant known after reporting the business registration under the name of Nonindicted Co. 3; (c) the Defendant’s change of the business registration name is not persuasive; and (d) the Defendant made a statement at the prosecutor’s office to the same purport as the Defendant himself and Nonindicted Co. 3; (c) the Defendant stated at the police that the above restaurant’s business registration was made under the name of Nonindicted Co. 2; and (d) in the case of corporeal movables located in the place of business, the name of the business registration becomes an important basis for identifying the possessor; and (e) the Defendant’s change of the business registration name of the above restaurant from Nonindicted Co. 3 to Nonindicted Co. 22.

B. However, we cannot accept the above determination by the court below for the following reasons.

According to the facts acknowledged by the lower court and the first instance court and the evidence adopted, the instant restaurant was registered under the name of Nonindicted Co. 3, operated by the Defendant from the opening of November 1, 2001. On August 30, 2007, the victim filed a lawsuit against the Defendant on June 9, 201 against Jeju District Court 2007Gahap2080, which declared on June 9, 201 that the Defendant would pay KRW 200 million to the Defendant and the damages for delay thereof, and the said judgment became final and conclusive on October 4, 2010; the Defendant additionally registered the business under the name of Nonindicted Co. 2 on April 30, 201, and reported the closure of business registration under the name of the said Nonindicted Co. 3 on June 30, 2010.

In light of the aforementioned legal principles and the aforementioned circumstances, even if the Defendant changed the business registration name of the instant restaurant from Nonindicted Co. 3 to Nonindicted Co. 2, as long as the said business owner is in the position of a third party, the victim may prove that corporeal movables in the instant restaurant are owned by the Defendant and Nonindicted Co. 3, and proceed with compulsory execution. Meanwhile, even if the Defendant made a statement at the prosecutor’s office to the same purport, even if the Defendant made a statement to the same effect as the Defendant himself/herself and Nonindicted Co. 3, it is not possible for the victim to execute movable properties possessed by Nonindicted Co. 3, based on the name of the Defendant’s debt against the Defendant, and the change in the Defendant’s business name cannot be readily concluded to have caused the above corporeal movables more unclear than the previous one in light of the victim’s position. Since the business registration of the instant restaurant was registered in the name of Nonindicted Co. 2, the victim cannot be viewed as

Nevertheless, the court below affirmed the judgment of the court of first instance which convicted of this part of the facts charged on the grounds as stated in its holding. Thus, the court below erred by misapprehending the legal principles on the concealment of the crime of evading compulsory execution, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

3. Conclusion

Of the guilty portion of the judgment of the court below, the part of evasion of compulsory execution against the defendant cannot be exempted from reversal. Since the court below sentenced one punishment on the remaining guilty portion in concurrent crimes under the former part of Article 37, it reversed the guilty portion of the judgment below and remanded this part of the case to the court below for further proceedings consistent with this Opinion. The prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)