(b) The case holding that, in case where the check was issued for the purpose of check and provided with other collateral and the holder performed the underlying obligation, and the check was presented for payment in violation of the duty to return, the issuer cannot be held liable for violation of the above provisions of the Act;

B. The defendant borrowed money from Gap and provided sufficient security by means of establishing a mortgage or provisional registration on several real estate at Gap's request. The defendant believed that the defendant would not present the check unless he paid the principal and interest in full, as long as he provided other security by means of the defendant's offering that he would keep the check only as security until he paid the principal and interest, and he believed that the defendant would not pay the check, and that the defendant would have been able to pay all the obligations which caused the check, and that the check will be returned without the presentation of the check, and that the defendant believed that the check would be returned, and that the possessor, who was the holder, violated his duty to return it to the defendant, and unduly presented the check by stating in blank the issue date without permission, he cannot be held liable for the violation of Article 2 (2) of the above Act due to the failure to pay the check amount.

1. According to the records, the court below rejected the defendant's appeal which found that the court below erred in finding that the defendant had committed an offense against the violation of the Illegal Check Control Act, considering the evidence duly adopted by the court of first instance after the examination of evidence, it is sufficient to recognize that the defendant had a possibility of not being paid when the above check is presented, and that the above check was issued without transaction or deposit shortage when it was delivered, and that the defendant issued the above check and the defendant agreed to keep it as security until the full repayment of the debt. After that, even if the defendant paid all of the above check, the above B did not have been paid at the due date, and the defendant did not have anticipated and issued the above check at the time of the issuance of the check, the court below found that the court of first instance erred in the violation of the Illegal Check Control Act.

2. The crime of violation of Article 2 (2) of the Illegal Check Control Act is established when an issuer issues a check, predicted that the check will not be paid on the date for presentation due to the shortage of deposits, etc., and the occurrence of the occurrence is established at the time of issuance of the check, even if the prediction is not affected, and the occurrence of the special agreement that does not present a payment, or the circumstance where the check is issued or the check cannot be paid as a result of the issuance of the check, etc. is not sufficient (see, e.g., Supreme Court Decision 80Do537, Apr. 13, 1982). However, if it is concluded that the drawer of the check did not anticipate the occurrence of such a result or there is a belief that the check will not be presented on the date for presentation due to the lack of deposits, etc., it is reasonable to deem that the liability for the crime of the issuance of an illegal check cannot be recognized.

3. According to the facts established by the court below, the date of issuance of the check of this case is May 19, 1989; the date of presentation is May 20 of the same year; and the date of actual issuance is October 25 of the same year; and June 30 of the same year; according to the records, the defendant borrowed money from the above B and issued them as so-called check to secure its obligation; however, according to the above B's request, the above B offered sufficient security by establishing a mortgage or provisional registration on several real estate; the above B was kept only as security until the defendant fully paid its principal and interest (the Investigation Record 248-250 page); the defendant presented that the above B failed to return the check of this case; the defendant's request for the return of the check of this case; the defendant did not request the return of the check of this case; the defendant's return of the check of this case without permission was presented to the court below, and the defendant presented that the check of this case was not subject to the above defendant's claim for the return of this case.

4. Therefore, the court below should determine whether or not the defendant can be liable for a violation of the Illegal Check Control Act by examining the following: (a) the circumstance in which the defendant was issued the check in this case; (b) whether the above B, who is the holder, committed a promise to the defendant; (c) whether the defendant acquired and possessed the check in this case for three to four years; (d) whether the above B had predicted that the check in this case would be presented for payment; and (e) whether or not the defendant believed that the check in this case would not be presented for payment; and (e) whether it would be justified and acceptable to believe that the check in this case was presented for payment.

If the check of this case was issued in the same manner as the defendant asserts, so it is believed that the above B did not suggest the payment of the check of this case as long as there is another security offered by the defendant, and thereafter the defendant fully repaid the obligation which was the cause of the check of this case, and thus, the defendant believed that the check of this case would be returned without the presentation of payment, and it is reasonable that the defendant believed that the check of this case would be returned, and that the defendant violated his duty to return it to the defendant, and that the bill of this case was unfairly presented for payment without permission on May 19, 1989, the defendant cannot be held liable for violation of Article 2 (2) of the Illegal Check Control Act due to the non-payment of the check of this case.

5. Thus, the court below erred by misapprehending the legal principles under Article 2 (2) of the Illegal Check Control Act, which affected the conclusion of the deliberation, or by misapprehending the legal principles, and the grounds for appeal are with merit to this extent.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Choi Young-young (Presiding Justice)