[1] The object of the crime of evading compulsory execution and whether "the status of provisional seizure creditor at the stage of preservation disposition" constitutes such case (negative)

[2] Whether a debtor's act of losing his status by filing an application for rescission of provisional seizure execution with a creditor of provisional seizure constitutes an evasion of compulsory execution (negative)

[1] The object of the crime of evading compulsory execution refers only to a debtor's property that can be the object of compulsory execution or preservative measure under the Civil Execution Act. As such, "the status of a creditor of provisional seizure at the stage of the preservation disposition" itself cannot, in principle, be the object of the crime of evading compulsory execution because it cannot be the object of compulsory execution or preservative measure under the Civil Execution Act. The same applies to the case where a debtor of provisional

[2] Since the debtor's act of losing his/her status by filing an application for the rescission of execution of provisional seizure is not included in any type of the act of evading compulsory execution, such as "harbor, destruction, false transfer or fraudulent liability" under Article 327 of the Criminal Act, such act shall not be subject to punishment.

[1] Article 327 of the Criminal Code / [2] Article 327 of the Criminal Code

Defendant

Prosecutor

Attorney Park Sang-hoon et al.

Changwon District Court Decision 2006No782 decided Nov. 14, 2006

The appeal is dismissed.

The grounds of appeal are examined.

Article 327 of the Criminal Act intends to protect the rights of creditors who are imminent in compulsory execution by punishing “a person who has concealed, destroyed, transferred, or falsely borne an obligation with the intent to escape compulsory execution.” Thus, the object of the crime of evading compulsory execution is limited to those of a debtor’s property which can be subject to compulsory execution or preservative measures under the Civil Execution Act. Since “the status of a creditor of provisional attachment at the stage of the preservation and disposition” itself cannot be subject to compulsory execution or preservative measures under the Civil Execution Act, it cannot be deemed as an object of the crime of evading compulsory execution. This also applies to the case where a debtor of provisional attachment deposits a provisional seizure amount. Furthermore, since the debtor’s act of losing his status by applying for the cancellation of provisional seizure is not included in any type of the act of evading compulsory execution, such as “a concealment, damage, false transfer or false debt burden,” as provided by Article 327 of the Criminal Act, such act cannot be subject to punishment.

According to the evidence duly examined by the court below, the defendant seized the claim against the non-indicted 1 as the right to be preserved, and the non-indicted 1 deposited the provisional seizure release money, and the non-indicted 2, the creditor of the defendant, and the non-indicted 3 knew that the deposit of the provisional seizure release money against the non-indicted 1 was made as the depositee and thus the repayment deposit or execution was made. The debtor, the non-indicted 3, the debtor of the defendant, the non-indicted 1, the non-indicted 2, and the non-indicted 3 were issued a provisional seizure or a seizure and collection order by making the defendant, the non-indicted 3, the debtor of the non-indicted 1 as the right to claim the withdrawal of the deposit held by the defendant as the depositee, and the defendant received a seizure and collection order.

Examining the above facts in light of the legal principles as seen earlier, it cannot be deemed that the Defendant simply applied for the cancellation of provisional seizure execution under the status of Nonindicted Party 1’s right to claim for the recovery of the provisional seizure deposit money, and the Defendant’s disposal of property falling under the object of the evasion of compulsory execution, or the act of evading compulsory execution stipulated under Article 327 of the Criminal Act, cannot be deemed as having committed an act of evading compulsory execution under Article 327 of the Criminal Act. The provisional seizure by the creditors of the Defendant, and the seizure and collection order based thereon, are obvious that all of the target claims have no effect since they have no effect from

The judgment of the court below to the same purport is just, and there is no illegality in the misapprehension of legal principles as to the objects of the crime of evading compulsory execution.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)