[1] In a case where the defendant submitted a false statement with no inherited property despite the existence of inherited property while filing a petition for bankruptcy, the case holding that the court below's measure to apply the former Bankruptcy Act to the above facts charged is unlawful since the time is before the Debtor Rehabilitation and Bankruptcy Act enters into force, although the former Bankruptcy Act applies to the above facts charged

[2] The meaning of "the concealment of property" in the crime of fraudulent bankruptcy under Article 366 (1) of the former Bankruptcy Act

[3] In a case where the defendant submitted a petition for bankruptcy without completing the registration of inheritance despite the existence of inherited property, accompanied by a false statement that there is no inherited property, the case denying the establishment of a fraudulent bankruptcy crime under the former Bankruptcy Act on the ground that the above act does not constitute “a concealment

[1] In a case where the defendant submitted a false statement with no inherited property despite the existence of inherited property while filing a petition for bankruptcy, the case holding that the court below's measures applied Article 366 subparagraph 1 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act (Act No. 7428 of Mar. 31, 2005) to the above facts charged are unlawful without relation to the legitimacy of interpretation of Article 650 subparagraph 1 of the former Debtor Rehabilitation and Bankruptcy Act, although Article 4 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act (amended by Act No. 7428 of Mar. 31, 2005) is applied to the above facts charged, inasmuch

[2] Article 366(1) of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) provides that “the concealment of property” refers to making it impossible or difficult to discover the property, and includes not only cases where the location of the property is unknown but also cases where the ownership of the property is unclear. However, the submission by the debtor of the property list, etc., which was not simply passively stated in his/her property status while filing a petition for bankruptcy with the court does not constitute “the concealment of property” as stated in the above crime.

[3] In a case where the defendant filed a petition for bankruptcy without completing the registration of transfer of ownership based on inheritance even though he/she had inherited property, along with a false statement that there is no inherited property, the case denying the establishment of fraudulent bankruptcy under the former Bankruptcy Act on the ground that the above act does not constitute “a

[1] Article 36 subparagraph 1 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005), Article 650 subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act / [2] Article 366 subparagraph 1 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) (see Article 650 subparagraph 1 of the current Debtor Rehabilitation and Bankruptcy Act) / [3] Article 36 subparagraph 1 of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005) (see Article 650 subparagraph 1 of the current Debtor Rehabilitation and Bankruptcy Act)

[2] Supreme Court Decision 2008Do6950 decided Jan. 30, 2009 (Gong2009Sang, 279)

Defendant

Defendant

Attorney Jeong-jin

Incheon District Court Decision 2008No3176 Decided April 22, 2009

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined ex officio before determining them.

On November 23, 2005, the lower court maintained the first instance court which found the Defendant guilty by applying Article 650 Subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Act”) to the facts charged of this case, where the Defendant concealed property by submitting a false statement that there was no inherited property despite the existence of inherited property upon filing a petition for bankruptcy on November 23, 2005, and dismissed the Defendant’s appeal.

However, according to Article 4 of the Addenda of the Act promulgated on March 31, 2005 and enforced on April 1, 2006, the previous provisions apply to the application of penal provisions to acts before the enforcement of the Act. Thus, Article 366 subparagraph 1 of the former Bankruptcy Act (amended by Act No. 7428 of March 31, 2005; hereinafter “former Bankruptcy Act”) shall apply to the facts charged in this case. Thus, the judgment of the court below that applied Article 650 subparagraph 1 of the Act is unlawful without relation to the legitimacy of the interpretation of the provision.

On the other hand, Article 650 subparagraph 1 of the Act and Article 366 subparagraph 1 of the former Bankruptcy Act concerning the crime of fraudulent bankruptcy cannot be deemed to have different meaning from each other, which is the element of the crime of fraudulent bankruptcy. Thus, whether the defendant's act constitutes "the concealment of property" or "the concealment of property" is still a case in determining whether the crime of fraudulent bankruptcy is established, and the grounds of appeal disputing it are examined.

In the crime of fraudulent bankruptcy stipulated in Article 366(1) of the former Bankruptcy Act, the term “the concealment of property” refers to making it impossible or difficult to detect any property, and not only where the location of property is unclear, but also where the ownership of property is unclear. However, the debtor’s submission of a property list, etc. which is not simply passively recorded in his/her property status in the court while filing a petition for bankruptcy to the court does not constitute “the concealment of property” as stated in the above crime (see Supreme Court Decision 2008Do6950, Jan. 30, 2009).

The court below maintained the first instance court which found the defendant guilty on the ground that the defendant's act of submitting a petition for bankruptcy without completing the registration of transfer of ownership based on inheritance, without completing the registration of transfer of ownership based on inheritance, by attaching a false statement with no inherited property, constitutes "the concealment of property" for the crime of fraudulent bankruptcy. However, according to the above legal principles, since the above act cannot be viewed as "the concealment of property" for this reason, the court below erred in the misapprehension of legal principles as to "the concealment of property" or the establishment of fraudulent bankruptcy, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit

Therefore, the judgment of the court below is reversed (the whole judgment of the court below is reversed inasmuch as a single sentence is imposed on all concurrent crimes under the former part of Article 37 of the Criminal Act, and the case is remanded to the court below for further proceedings consistent with this Opinion). It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)