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Defendant
The appeal is dismissed.
Reasons
Summary of Grounds for Appeal
The Defendant, by misunderstanding of facts or misunderstanding of legal principles, was forced by creditors E to enforce a compulsory execution on the books of “D” restaurant operated by himself (hereinafter “D”) and credit card payment claims, etc., thereby resulting in the closure of business without any choice but the Defendant had no property to conceal the Defendant at the time.
In order to recover the premium on the instant restaurant, the Defendant: (a) actually transferred the instant restaurant business to F, his father, and (b) did not constitute an act of damaging the obligee by concealing the Defendant’s property for the purpose of evading compulsory execution.
The sentence of unfair sentencing (one year of imprisonment with prison labor for four months, one year of suspended execution) is too unreasonable.
Judgment
The crime of evading compulsory execution under Article 327 of the Criminal Act is established when the creditor is harmed by concealing, destroying, falsely transferring or falsely bearing the property under the specific risk of compulsory execution.
Here, the property which is the object of the crime of evading compulsory execution refers to the property which can be considered as the object of compulsory execution or preservative measure under the Civil Execution Act by the creditor from among the property of the debtor (see Supreme Court Decision 2006Do8721, Sept. 11, 2008). Even in the future right, if the debtor and the third debtor have sufficiently indicated or determined legal relations exist between the debtor and the third debtor, it shall be deemed as property.
(see Supreme Court Decision 201Do6115, Jul. 28, 2011). In addition, in the crime of evading compulsory execution, the term “conception of property” refers to the impossibility or difficulty of identifying property against a person executing compulsory execution, and the ownership of property is unclear, as well as the impossibility of identifying the location of property.