강제집행면탈죄에서의 `채권자를 해할 위험` = Risks of Damaging Creditors in Evasion of Execution

다국어 초록 (Multilingual Abstract)

Evasion of Execution is a penal offense, but it is a complex case of crime that is closely related to the civil law, which has been mostly left for the field-level decisions so far. Evasion of Execution is understood as abstract endangering offense, in order to enable smooth securing of credit for creditors and avoid unnecessary disputes. The Supreme Court `practically` assumes that when act of evasion takes place, there are risks of damaging creditors. However, it denies the risks in the following cases: When creditors do not have the right in terms of civil law; the characteristics of claim or the amount of liability property are enough to ensure civil execution to take place without hindrance; or when transaction is authentic. It seems, therefore, the Supreme Court has been reacting to `risks of damaging creditors` based on the civil law and relying on field-level senses. However, it is difficult to quickly react to various cases of Evasion of Execution with such attitudes in current judicial precedents. Judgments of the Supreme Court can be considered appropriate where legal civil execution is impossible. However, risks of damaging creditors must be acknowledged for cases when the act significantly hinders civil execution but cannot be cut off during civil execution process. Moreover, regarding existence and inexistence of liability property, all circumstances should be considered as the current practice; risks of damaging the creditors must be acknowledged when there is no liability property or when effectiveness of civil execution cannot be ensured, and even in cases of authentic transaction, Evasion of Execution should be established if such transaction can be evaluated as `concealment,` to correspond with understanding the crime to be abstract endangering offense.