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(영문) 전주지방법원 2017.12.08 2017노1439
강제집행면탈
Text

All appeals by the Defendants are dismissed.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts and legal principles 1) Defendant B merely received the “E” due to the difficulties in the operation of the “E” operated by Defendant A and ASEAN, and there was no intention or purpose to evade compulsory execution by the creditor F Co., Ltd. (hereinafter “F”).

2) Even if the name of the business operator in E was changed from Defendant A to Defendant B, the creditor can enforce compulsory execution on the corporeal movable property in accordance with the legal principles of business transfer and mutual tolerance under Article 42(1) of the Commercial Act. Thus, the Defendants’ act of changing the name of the business operator in the name of the business operator in E does not constitute “a concealment” in the crime of evading compulsory execution.

B. The lower court’s sentence (Defendant A: a fine of KRW 1.5 million; Defendant B: a fine of KRW 2 million) against the illegal Defendants is too unreasonable.

2. Determination

A. Fact-misunderstanding and misapprehension of legal principles 1) On the assertion that there was no intention or purpose of evading compulsory execution, the crime of evading compulsory execution is established when the creditor is detrimental to the creditor by concealing, destroying, transferring or falsely bearing the property in a situation where there is a concrete risk of being subject to compulsory execution. Here, the situation where there is a specific risk of being subject to compulsory execution refers to the case where the creditor files an application for provisional attachment or provisional disposition for preserving the lawsuit or for preserving the claim (see Supreme Court Decision 96Do3141 delivered on February 9, 199). B) The following circumstances acknowledged by evidence duly adopted and investigated at the court below, namely, ① Defendant A operated the cosmetics and direction-setting retail stores with the Plaintiff “E” (hereinafter “instant store”). The registration of Defendant B’s husband was registered under the name of Defendant B’s husband at the time of October 1, 200 to 4, Defendant 15, and Defendant B’s new evidence under the name of Defendant B’s husband at the same time.

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