Defendant 1 and one other

Defendant

Kim Jin-Nam (Lawsuit) and Kim Jae-Nam (Trial)

Attorneys Gangnam-han et al.

Seoul Western District Court Decision 2013Ma379 Decided February 6, 2014

All the judgment below against the Defendants is reversed.

Defendants shall be punished by imprisonment for one year.

However, for two years from the date this judgment became final and conclusive, the execution of the above sentence against Defendant 1 shall be suspended.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

At the time of changing the name of the building owner, the building of this case was completed by the 7th floor of the entire 13th floor, and thus cannot be subject to compulsory execution, and the name of the building owner does not fall under the property subject to compulsory execution. While the Defendants cannot continue construction under the name of the non-indicted 1 Co., Ltd. (hereinafter referred to as "non-indicted 1 Co., Ltd.") and it was inevitable to change the name of the building owner in order to continue construction, and it was not changed to the intent to evade compulsory execution, the lower court convicted the Defendants of the facts charged. In so determining, the lower court erred by misapprehending the legal doctrine as to the elements

B. Unreasonable sentencing

The punishment of the lower court against the Defendants (two years of imprisonment) is too unreasonable.

2. Judgment on misconception of facts or misapprehension of legal principles

A. Summary of the facts charged

Defendant 2 was the representative director of Nonindicted Company 1, and Defendant 1 was the former auditor of Nonindicted Company 1 as Defendant 2’s child;

In the lawsuit claiming a check payment against Nonindicted Company 1 (Seoul Western District Court Decision 2004Kadan10261) that was filed by Nonindicted Company 3 against Nonindicted Company 1, the judgment ordering Nonindicted Company 3 to pay KRW 20,500,000 and delay damages therefor, and Nonindicted Company 4 filed the lawsuit claiming a contract payment against Nonindicted Company 1 (Seoul Western District Court Decision 2005Gahap1254) against Nonindicted Company 4 (Seoul Western District Court Decision 2005Gahap1254) to pay damages for delay of KRW 98,79,275 and 78,517,500 among them. However, Nonindicted Company 5 did not pay the above debt to Nonindicted Company 1. The Defendants conspired with Nonindicted Company 3 and 4 for the purpose of evading the compulsory execution by Nonindicted Party 5, etc., and changed Nonindicted Company 1’s property in the name of Nonindicted Company 2, 201 in the name of Nonindicted Company 1’s land construction (hereinafter “Nonindicted Company 201’s land”).

B. Determination

1) Determination on the assertion on the subject of compulsory execution

In the crime of evading compulsory execution, the term “concepting property” refers to making a person executing compulsory execution impossible or difficult to detect property, and includes not only cases where the location of property is unknown, but also cases where the ownership of property is unknown (see, e.g., Supreme Court Decision 2011Do6115, Jul. 28, 2011). In a case where there is a risk of undermining creditors due to such act, the crime of evading compulsory execution is established, and the crime of evading compulsory execution is not established only where the consequence under which the creditor actually damages the creditor is not necessarily caused (see, e.g., Supreme Court Decision 2001Do4759, Nov. 27, 2001).

Thus, if a new building under construction is completed in the future, it becomes the object of the crime of evading compulsory execution, and thus, there is a risk that it would be prejudicial to creditors in the event of concealment, and the act of changing the name of the owner of the building under construction and making the ownership of the new building unclear in the future constitutes "harbor" in the crime of evading compulsory execution (see, e.g., Supreme Court Decision 2008Do9164, Dec. 11, 2008).

The Defendants’ assertion on this part is without merit.

2) Determination on the assertion on the criminal intent of evading compulsory execution

The lower court determined that the change of the name of the instant building owner between Nonindicted Company 1 and △△△△△△ was based on a false agreement and constitutes an act of concealing property in order to escape creditors’ compulsory execution. In other words, the following circumstances acknowledged by the lower court and the evidence duly admitted and investigated by the lower court, namely, ① the building of this case at the time when the Defendants changed the name of the building owner was completed up to 8th floor of the entire 11th floor; ② the lawsuit for performance of the procedure for change of the name against △△△△△△△△△△△△ was finalized on January 14, 2010 (Supreme Court Decision 209Da82350), and the lower court’s determination on October 4, 2010 on the ground that Nonindicted Company 1 changed the part of the building owner in the name of △△△△△△△△△△△△△△△△△△△△△△△△△△△, which was a new construction on October 29, 2010.

The Defendants’ assertion on this part is without merit.

3. Judgment on the assertion of unfair sentencing

In light of various sentencing conditions such as the Defendants’ age, character and conduct, family environment, motive, means and consequence of the commission of the crime, etc., the lower court’s measures that are sentenced to imprisonment with prison labor for not more than two years are excessively unfair in light of the following: (a) the Defendants deposited some money for the recovery of damage when the Defendants were in the trial; (b) the statutory penalty for the crime of evading compulsory execution is imprisonment with prison labor for not more than three years or a fine not exceeding ten million won; (c) the Defendants already detained in the instant case and have been under detention for not more than five months; and (d) the Defendants are at the same time detained; and (e) the Defendants are deemed to have a significant impact over the Defendants’ home life.

4. Conclusion

If so, the defendant's appeal is reasonable, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following decision is rendered after pleading.

As described in paragraph (a) above 2-A.

Since the corresponding column of the judgment of the court below is the same as the corresponding column of the judgment below, it shall be quoted by Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 327 and 30 (Selection of Imprisonment)

1. Suspension of execution (Defendant 1);

Article 62 (1) of the Criminal Act (Consideration Grounds, etc. for Destruction)

Judges Han Young-jin (Presiding Judge)