[1] In a case where a title trustee becomes a party to a contract under a so-called title trust agreement with the owner and completed the registration of ownership transfer under his/her name, whether the pertinent real estate constitutes an object of evasion of compulsory execution (negative)

[2] The case holding that in case where the defendant, the actual owner of the real estate held in title trust, acquired real estate by fraudulent transfer for the purpose of evading compulsory execution, thereby damaging creditors, and was prosecuted for the crime of evading compulsory execution, the land of the above real estate cannot be the object of the crime of evading compulsory execution against the defendant since it cannot be the object of compulsory execution or preservative measure against the defendant

[3] Where there are several creditors, the relation between the crime of evading compulsory execution

[1] In a case where the title truster and the title trustee entered into a so-called contract title trust agreement with the owner who was unaware of the fact that the title trustee was a party to the contract, and completed the registration of ownership transfer of the pertinent real estate pursuant to the said contract, the title truster and the title trustee shall acquire the full ownership of the pertinent real estate pursuant to the proviso of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, notwithstanding the invalidity of the said contract, notwithstanding that the title trust agreement between the title truster and the title trustee was null and void. On the other hand, in a case where the title truster becomes aware of the fact that the title trust agreement exists, the registration of ownership transfer in the name of the title trustee is null and void, and the ownership of the pertinent real

[2] The case holding that in case where the Defendant, a real owner of the title trust real estate, falsely transferred the real estate to the obligees for the purpose of evading compulsory execution, and was prosecuted for evading compulsory execution, the Defendant’s act of evading compulsory execution against the Defendant cannot be subject to compulsory execution against the Defendant, on the ground that it cannot be subject to compulsory execution or preservative measures against the Defendant, unless the Defendant, a truster, and the title trustee, knew of the fact that the ownership was under a contract title trust agreement between the Defendant and the title trustee Byung, and thus, the title truster cannot be subject to compulsory execution or preservative measures against the Defendant, regardless of whether he had known that the ownership was under a contract title trust agreement between the Defendant and the title trustee.

[3] Where multiple compulsory execution by creditors is expected, if creditors were to be harmed by concealing or falsely transferring assets, a crime of evading compulsory execution by each creditor is established, and there is a mutual and commercial concurrent relationship between the creditors.

[1] Article 327 of the Criminal Act, Article 4 (1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Article 327 of the Criminal Act, Article 4 (1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [3] Articles 40 and 327 of the Criminal Act

[1] Supreme Court Decision 2007Do2168 decided May 14, 2009 (Gong2009Sang, 905) / [3] Supreme Court Decision 2002Do4123 Decided October 25, 2002

Defendant

Defendant

Attorneys Lee Ho-sung et al. and one other

Jeonju District Court Decision 2009No1479 Decided March 19, 2010

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

The grounds of appeal are examined.

1. Article 327 of the Criminal Act intends to protect the rights of creditors who have been subject to compulsory execution by punishing “a person who has injured creditors by concealing, destroying, falsely transferring, or bearing false debts with the intent to escape compulsory execution.” Thus, the subject of the crime of evading compulsory execution should be that creditors from among the debtor’s property may be subject to compulsory execution or preservative measures under the Civil Execution Act. Meanwhile, in cases where a title truster and a title trustee concluded a sales contract on real estate with the owner who was unaware of the fact that the title trustee was a party to a contract under a title trust agreement and completed the registration of ownership transfer of the relevant real estate in accordance with the said sales contract, the title trustee shall acquire full ownership of the relevant real estate pursuant to the proviso of Article 4(2) of the Act on the Registration of Real Estate under the Actual Titleholder’s Name notwithstanding the invalidity of the title trust agreement between the title truster and the title trustee, if he knows that there was a title trust agreement between the title truster and the title trustee, the title truster’s ownership of the relevant real estate shall be null and void.

2. According to the reasoning of the judgment below, the court below determined as follows: "The defendant is the actual owner of the building site and its ground building (hereinafter "the building site of this case" and "the building of this case" with the building site of this case. The victims, who are creditors, such as construction cost claims, etc. due to the extension of the building of this case, are anticipated to enforce compulsory execution on the building site and building of this case, the non-indicted 1 limited company was established on July 8, 2008, and on August 19, 2008, the non-indicted 1 transferred the building site of this case and building of this case to the non-indicted 1 limited company in the name of the non-indicted 1 company for the purpose of evading compulsory execution by completing the registration of transfer of ownership in the name of the non-indicted 1 company in the name of the non-indicted 2 company, and the defendant did not own the building site of this case or building of this case to the non-indicted 1 company to which the non-indicted 2 company owned the real estate of this case as its own property of this case."

Then, the lower court: (a) prepared an agreement with the following circumstances acknowledged by the evidence adopted, namely, ① the Defendant established Nonindicted Company 1 with the intent to transfer the ownership of the instant real estate on July 8, 2008 when the auction was underway; (b) the Defendant was difficult to bear expenses for the transfer of ownership of the instant real estate; and (c) on August 2008, the Defendant entered Nonindicted Company 4, the obligee, as the representative director of Nonindicted Company 1, and Nonindicted 4, as the representative director of Nonindicted Company 1; and (d) after the Defendant repaid all debts to Nonindicted Company 4, Nonindicted 4 shall resign from the office of representative director of Nonindicted Company 1; (e) on August 13, 2008, the Defendant entered Nonindicted Company 4 as the representative director of Nonindicted Company 1, as the title of the instant real estate on the ground that Nonindicted Company 1, the title of the instant real estate was transferred on August 19, 2008; and (e) on the ground that Nonindicted Company 2, the instant sales contract or the instant real estate was acquired on August 28.

3. A. We first examine the evasion of compulsory execution due to the false transfer of the building of this case.

In addition to the above facts acknowledged by the court below, since the defendant newly constructed the building of this case at his own expense but was registered as bad credit holder at the time of the construction by the financial institution, the registration of ownership preservation in the name of the non-indicted 6, which was the defendant's wife on September 27, 1999, was completed in the name of the non-indicted 3, which was established by the defendant for the purpose of evading the creditor's compulsory execution, and the registration of ownership transfer was completed in the name of the non-indicted 3, which was established by the defendant on the same day to transfer the ownership of the building of this case to the non-indicted 2, March 10, 203, and again, on August 19, 2008, the defendant transferred the ownership of the building of this case to the non-indicted 1, as seen above, for the purpose of evading the compulsory execution, and thus, the registration of ownership transfer in the name of the non-indicted 1, the non-indicted 2, and each of the above non-indicted 3, as the ownership registration of this case can still be applied.

Furthermore, the court below's decision that the defendant transferred the building of this case to non-indicted 1 company is just for the reasons stated in its holding, and in light of the records, it is sufficiently recognized as an act with the purpose of evading creditors' compulsory execution. Thus, it is just for the court below to find the defendant guilty of evading compulsory execution due to the false transfer of the building of this case.

B. Next, we examine the evasion of compulsory execution due to the false transfer of the instant land.

According to the records, although the defendant completed the registration of ownership transfer in the name of non-indicted 2 on October 7, 1998, he purchased the ownership by the non-indicted 7 on December 6, 199 through the voluntary auction procedure that had been going before, and the defendant purchased the land in the name of non-indicted 3 corporation on May 27, 200 and completed the registration of ownership transfer in the name of the above company. The defendant purchased the land in the name of non-indicted 7 on May 27, 200 and completed the registration of ownership transfer in the name of the above company. On March 10, 203, he transferred the ownership in the name of non-indicted 2 in the future on August 19, 208.

If the facts are the same, the Defendant purchased the instant site in the name of Nonindicted Co. 3 and completed the registration of ownership transfer in the future is subject to the so-called contract title trust agreement between the Defendant and Nonindicted Co. 3, the title truster, and regardless of whether Nonindicted Co. 7 knew of the existence of such agreement, the Defendant, the title truster, regardless of whether he or she was aware of the existence of such agreement, could not acquire the ownership of the instant site. After that, the Defendant only transferred another name in the name of Nonindicted Co. 2, the title trustee, who was another title trustee, and the Defendant did not complete the registration of ownership transfer in his or her own name. Therefore

Nevertheless, the court below erred by misapprehending the legal principles as to the objects of the crime of evading compulsory execution, which found the Defendant guilty of evading compulsory execution due to false transfer of the land of this case.

C. Meanwhile, since the court below rendered a single sentence on the grounds that the defendant's act of damaging creditors by falsely transferring the building site and building of this case to non-indicted 1 company, it constitutes a single crime, the entire judgment of the court below may not be reversed (However, in the case of this case where multiple compulsory execution by creditors is expected as in the case of this case, if the creditors were harmed by concealing or falsely transferring the assets, the crime of evading compulsory execution by each creditor is established, and the crime of evading compulsory execution by the false transfer of the building of this case is established, and the crime of evading compulsory execution by the false transfer of the building of this case is also established by each creditor, and it is pointed out that the crime of evading compulsory execution by the false transfer of the building of this case should also be deemed that the crime of evading compulsory execution by the false transfer of the building of this case

4. Conclusion

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 on the bench.

Justices Kim Nung-hwan (Presiding Justice)