[1] Whether the act of hiding property for the purpose of evading disposition on default under the National Tax Collection Act is subject to the crime of evading compulsory execution (negative)

[2] Whether Article 33 of the "Act on the Budgeting and Management of Subsidies" provides that "a subsidy to be returned may be collected in accordance with the example of the collection of national taxes," which is permitted to be selected from among compulsory execution under the Civil Execution Act and compulsory collection of national taxes in accordance with the disposition of national taxes (negative)

[1] Compulsory execution to which Article 327 of the Criminal Act applies refers to compulsory execution, provisional seizure, provisional disposition, etc. subject to the Civil Execution Act. Thus, the act of concealing property for the purpose of evading disposition on default under the National Tax Collection Act is not included in the subject of the regulation of the above crime.

[2] Articles 30(1) and 31(1) of the Act on the Budgeting and Management of Subsidies (hereinafter “Subsidy Management Act”) provide that “The right to collect subsidies to be returned is an administrative disposition and the obligation to return subsidies arises.” As such, the right to collect subsidies is different from that in public law, from that in private law. Therefore, Article 33 of the Subsidy Management Act provides that “a subsidy to be returned may be collected according to the example of the collection of national taxes.” It is only limited to a case where a refund of a subsidy may be subject to compulsory collection according to the example of the disposition of national taxes in arrears, and it does not constitute a provision allowing a choice among compulsory execution under the Civil Execution Act and compulsory collection under the disposition of national taxes in arrears.”

[1] Article 327 of the Criminal Act / [2] Articles 30 (1), 31 (1), and 33 of the Act on the Budgeting and Management of Subsidies

[1] Supreme Court Decision 72Do1090 Decided May 31, 1972 / [2] Supreme Court Decision 201Da17328 Decided March 15, 2012 (Gong2012Sang, 571)

Defendant 1 and three others

Prosecutor

Attorney Kim Han-sung

Seoul Western District Court Decision 2009No1155 decided April 22, 2010

All appeals are dismissed.

The grounds of appeal are examined.

Since compulsory execution subject to Article 327 of the Criminal Act refers to compulsory execution, provisional seizure, provisional disposition, etc. subject to the Civil Execution Act (see Supreme Court Decision 72Do1090, May 31, 1972), the act of hiding property for the purpose of evading a disposition on default under the National Tax Collection Act is not included in the subject matter subject to the regulation of the above crime.

Meanwhile, Articles 30(1) and 31(1) of the former Act on the Budgeting and Management of Subsidies (amended by Act No. 9347, Jan. 30, 200; hereinafter “former Subsidy Management Act”) provide that “The right to collect subsidies to be returned is an administrative disposition and the obligation to return subsidies must be imposed.” As such, the right to collect subsidies is different from that under public law as a right under private law (see Supreme Court Decision 201Da17328, Mar. 15, 2012). Therefore, Article 33 of the former Subsidy Management Act provides that “the subsidies to be returned may be collected according to the example of collection of national taxes.” This does not mean that the return of subsidies can be subject to compulsory collection in the same manner as delinquent national taxes are asserted in the grounds for appeal.

In the same purport, the court below is just in maintaining the conclusion of the judgment of the court of first instance which acquitted the Defendant of the facts charged of this case, and there is no violation of the misapprehension of legal principles as otherwise alleged in the ground of appeal.

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

Justices Ahn Dai-hee (Presiding Justice)