채권추심명령을 통한 소송사기죄에서 재산상 이익의 취득과 기수시기

The meaning of ‘obtaining pecuniary advantage’ and the time of consummation in procedural fraud committed through creditor’s collection order

Procedural fraud is a type of a so–called triangular fraud targeting to mislead the judgment of the court, which differs from the structure of a general fraud in that it has some aspects of deeming it sufficient to satisfy its constituent elements. When a broad-minded approach is taken to interpret the element of ‘pecuniary advantage’ in the context of fraud, it is not impossible to construct a theory that procedural fraud in compulsory execution is consummated when a judgment of the executive court at the intermediate stage of the enforcement process is identified as such ‘pecuniary advantage’. However, since the compulsory execution procedure is a series of procedures in which various actions are cumulatively carried out to satisfy the claim based on court judgment/arbitral award which has become final and conclusive, the time of consummation should be when the claim is satisfied or when the compulsory execution procedure terminate. Regarding the time of consummation of procedural fraud, which is related to the issuance of a collection order in a compulsory execution procedure, it is insufficient for the execution creditor merely to obtain an issuance of a collection order but further need the satisfaction of claim by actually collecting the seized claim etc.