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Crime of evading compulsory execution

The crime of evading compulsory execution involves harming a creditor by concealing, destroying, or fraudulently transferring property, or by assuming a fictitious debt, in order to evade compulsory execution. It is punished severely under the Criminal Act.

CONTENTS
  • 1. Crime of evading compulsory execution | Concept
    • - Elements of the offense
    • - Meaning of compulsory execution
  • 2. Crime of evading compulsory execution | Level of punishment
    • - Sentencing standards
    • - Frequently occurring cases
    • - Levels of punishment seen through related precedents
  • 3. Crime of evading compulsory execution | If you are a suspect?
    • - Where you admit the charges
    • - Where you deny the charges
    • - When Professional Assistance May Be Needed
  • 4. Crime of Evasion of Compulsory Execution | If You Are the Victim?
    • - Criminal Complaint
    • - Civil Lawsuit
    • - When Professional Assistance May Be Needed

1. Crime of evading compulsory execution | Concept

Crime of evading compulsory execution concealment of property fictitious debt disposal of property creditor's compulsory execution proof of intent to defraud

The crime of evading compulsory execution is one of the crimes interfering with the exercise of rights under Chapter 37 of the Criminal Act.

Under Article 327 of the Criminal Act, it applies where a person, for the purpose of evading compulsory execution, conceals, destroys, or fraudulently transfers property, or assumes a fictitious debt, and thereby harms a creditor.

This crime is punished because it involves a debtor avoiding or obstructing the creditor when the creditor seeks to recover the debt by force through a legally legitimate procedure.

Elements of the offense

For the crime of evading compulsory execution to apply, the following requirements must be met.

▷ There must be property that is subject to compulsory execution

▷ There must be a purpose of evading compulsory execution

▷ There must be an act of concealing or destroying property, fraudulently transferring it, or assuming a fictitious debt

The crime of evading compulsory execution may apply based on the act done with intent to evade alone, regardless of whether the creditor actually suffered harm or the actor obtained a benefit.

Meaning of compulsory execution

Compulsory execution is a procedure in which the State exercises public authority to realize a claim under private law by force.

Unlike a judgment procedure that confirms a right, it is a procedure that actually realizes a confirmed right, resolving a dispute in fact and conclusively.

In other words, if the judgment procedure concludes a dispute in theory, the compulsory execution procedure is the stage that follows and conclusively resolves the dispute in practice by realizing the right.

2. Crime of evading compulsory execution | Level of punishment

The crime of evading compulsory execution is punishable under the Criminal Act by imprisonment for up to 3 years or a fine of up to 10 million won.

Criminal Act Article 327

Crime of evading compulsory execution

Imprisonment for up to 3 years or a fine of up to 10 million won

Sentencing standards

▶ Where the offense was committed with willful negligence (dolus eventualis)

▶ Where there are circumstances especially worthy of consideration regarding the participation in the offense

▶ Where the actual harm was minor

▶ Mental and physical weakness

▶ Voluntary surrender or whistleblowing

▶ The victim's wish not to punish or recovery of damages (including a deposit in court)

▶ Passive participation

▶ Sincere remorse

▶ No record of prior criminal punishment

Frequently occurring cases

▷ Title trust of real estate

This is a case in which a debtor places ownership of their real estate in the name of a family member or acquaintance so that the creditor cannot carry out compulsory execution against it.

▷ Concealment of property

This is a case in which a debtor moves their deposits or claims to another account or assigns them to another person so that the creditor cannot carry out compulsory execution against that property.

▷ Setting up a fictitious debt

This is a case in which a debtor falsely creates a debt that does not actually exist and uses it to obstruct the creditor's compulsory execution.

▷ Fleeing after disposing of property

This is a case in which a debtor hastily disposes of their property and then flees abroad or goes into hiding, making the creditor's compulsory execution difficult.

▷ Concealment of property during the divorce process

This is a case in which a debtor conceals their property to avoid the obligation to divide property or pay child support during the divorce process, obstructing the creditor's exercise of rights.

Levels of punishment seen through related precedents

Daejeon District Court, Judgment of April 14, 2022, 2021 Godan 934

Defendant A, while married to the victim, purchased land and a building and registered the transfer of ownership in A's sole name.

Later, as conflict between the spouses intensified, A decided to divorce and learned that, because the real estate was property jointly acquired during the marriage, compulsory execution measures such as attachment could be carried out against it.

Defendant A therefore explained these circumstances to Defendant B and, after conspiring to fraudulently transfer the property for the purpose of evading compulsory execution, completed the registration of the ownership transfer in Defendant B's name.

In the end, Defendants A and B were found to have conspired to fraudulently transfer the property with the intent to evade compulsory execution, and the crime of evading compulsory execution was established.

As a result, Defendant A received a suspended sentence, and Defendant B was sentenced to a fine of 4 million won.

3. Crime of evading compulsory execution | If you are a suspect?

Crime of evading compulsory execution transfer of real estate title concealment of property under another's name attachment evasion creditor's revocation lawsuit obstruction of compulsory execution

If you are facing a charge for the crime of evading compulsory execution, then to defend against punishment you should fully understand the case, secure favorable evidence, and develop a strategy that takes into account the various factors that may arise in the legal procedure.

Where you admit the charges

Where you admit the charge for the crime of evading compulsory execution, then to reduce the punishment it is important to develop a systematic response strategy that takes the following points into account.

▷ Sincere remorse for and confession of the circumstances of the offense

▷ Measures to recover the harm (for example, returning part of the concealed property and making efforts to make the victim whole)

▷ Proving that the degree of participation in the offense was minor or that the role was passive

▷ Establishing mitigating circumstances that may be reflected in sentencing, such as social and economic conditions

Where you deny the charges

Where you deny the charges, the key is to prove that the ‘intent’ and ‘false act,’ which are elements of the crime of evading compulsory execution, are absent.

▷ Proving that the actual transfer of property was a legitimate transaction

▷Explaining that there was no purpose of evading compulsory execution

▷ Submitting materials proving that it was not a fraudulent transfer or the setting up of a fictitious debt

When Professional Assistance May Be Needed

For the crime of evasion of compulsory execution, it is advisable to secure evidentiary materials systematically from the early stage of the case and to prepare a tailored response strategy.

We also work with an evidence investigation center (a partner organization) to thoroughly analyze asset records and related materials, which supports an effective response from the investigation stage onward.

4. Crime of Evasion of Compulsory Execution | If You Are the Victim?

Crime of evasion of compulsory execution, false transfer contract, asset flight, securing a title for execution, avoidance of debt repayment, filing a criminal complaint

If you are the victim of the crime of evasion of compulsory execution, you may file a criminal complaint and also claim damages through a civil lawsuit.

Criminal Complaint

You must prove that the debtor concealed assets or falsely transferred them, among other acts, in order to avoid compulsory execution.

① Drafting the Complaint

Set out the details of the debtor's offense, the harm suffered, and the related evidence in specific terms.

② Cooperation With Investigative Authorities

Respond diligently to the police investigation, provide the necessary materials, and cooperate with the investigation.

Civil Lawsuit

If recovery of your claim has become difficult because of acts of evasion of compulsory execution, you may also take civil measures to restore your rights.

① Lawsuit for Revocation of a Fraudulent Act

On the ground that the debtor's concealment of assets or false transfer harms the creditor's rights, you may seek a declaration that the juristic act is void or seek its revocation.

② Claim for Damages

You may claim damages for the loss caused by the evasion of compulsory execution.

③ Application for Provisional Attachment and Provisional Injunction

To prevent the debtor from concealing assets or making further dispositions, you may apply for a provisional attachment or a provisional injunction.

When Professional Assistance May Be Needed

The criminal and civil procedures relating to evasion of compulsory execution often involve complex issues, because the circumstances of the asset disposition and the underlying debt relationship are intertwined.

The legal assessment may also change depending on how the flow of funds or the structure of the asset transfer is interpreted, so organizing the materials and setting the direction of the response are important.

Because proof of the transaction history and timing is central, securing evidence and organizing the facts at the early stage are necessary.

Daeryun Law Firm draws on its experience in handling criminal cases to analyze the structure of asset transfers and related issues and to develop a response strategy.

If you are in a situation that calls for an investigation response or other action in connection with the crime of evasion of compulsory execution, please confirm a response strategy suited to your situation through a 🔗criminal attorney legal consultation booking.

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