[2] The meaning of a holder who can express his/her intention not to punish him/her under Article 2 (2) of the Illegal Check Control Act in a violation of Article 2 (4) of the same Act and the time limit for expressing his/her intention not to punish him/her (=before the judgment of the first instance

[2] According to Article 2 (4) of the Illegal Check Control Act, a violation of Article 2 (2) of the same Act shall not be prosecuted against the express intention of the holder of the check. The holder who can express such intent shall refer to the holder of the check at the time of the ordinary presentation of payment. If the check is recovered to the former after the refusal of payment, the person who is in possession of the check shall be recovered, and if the check is lost, the holder at the time of the loss of the check shall be able to express his/her intention of non-performance of the punishment, and such intention of non-payment shall be made before the first decision of the court of first instance (see Article 232 (1) and (3) of the Criminal Procedure Act).

1. As to the violation of trust

In light of the records, since criminal facts of breach of trust against the defendant can be recognized, the judgment of the court below shall not be deemed to have erred in finding facts against the rules of evidence as alleged in the grounds of appeal.

2. As to the check drawing

A. In the so-called crime of non-prosecution of intention, the absence of the expression of intention in the punishment shall be subject to ex officio investigation as a so-called passive litigation condition, and even if the parties did not assert it as the grounds for appeal, the court below should investigate and determine it ex officio (In addition, according to the records, the defendant asserts it in the supplement of the grounds for appeal submitted after the lapse of the period for appeal).

B. According to Article 2 (4) of the Illegal Check Control Act, a violation of Article 2 (2) of the same Act shall not be prosecuted against the express intention of the holder of the check. The holder who can express such an intention of non-prosecution refers to the holder of the check at the time of the ordinary presentation of payment. If the check is recovered to the electronic person after the refusal of payment, the person who is in possession of the check shall be recovered. In this case, if the check was lost, the holder at the time of the loss can express his intention of non-prosecution of the punishment (see, e.g., Supreme Court Decisions 95Do1836, Nov. 28, 1995; 2000Do123, May 16, 200). Such intention of non-prosecution of punishment becomes the first instance judgment (see, e.g., Article 232 (1) and (3) of the Criminal Procedure Act).

C. According to the records of the court of first instance as cited by the court below, a copy of the above check was submitted to the court below that the above check No. 2, 7 No. 2, 09408184, 0940808) was not subject to punishment against the defendant (the investigation record No. 174), and a 10 check No. 10 of the same table (the investigation record No. 0940751) was presented to the court below that the above 10-1, 16 of the above 10-1, 30-1, 94 were not subject to punishment against the defendant (the investigation record No. 183). A copy of the above 10-1, 16 of the above 10-1, 30-1, 17 of the 1940-1, 194, 09474) were presented as a witness of the above 18-1, 3084, 1984).

D. In addition, according to the records, with respect to the checks Nos. 5 and 15 (the last day is 09407184, the last day is 09407070202), the documents are submitted to the effect that the number of holders of the checks does not want to be punished by the defendant (the investigation records No. 182), and each check Nos. 26,27 of the same table (the last day is 0940798, the last day is 09408034), and a certificate of seal impression is submitted (the investigation records No. 177) that the following documents were prepared and sent to the court below (the investigation records No. 278-279). Accordingly, the court below should have examined whether each of the above checks was subject to punishment prior to the pronouncement of the first instance judgment as the holder of the checks.

E. Meanwhile, the check Nos. 8 (math 09408185), 12 (math 0514595), 25 checks (math 09407206), 28 checks (math 09407500), 29 checks (math 09408033), 30 checks (math 09408032), and 31 checks (math 0940782) were submitted to the lower court to the effect that the Defendant’s new statement was not made to the effect that some of the above documents (e.g., investigation records, 170-172), which were written by the lower court to the effect that the Defendant’s new statement was not made, and that the Defendant’s new statement was made to the effect that the Defendant’s previous statement was not made, but to the effect that the Defendant’s new statement was not made, and that the lower court made a new statement to the effect that the previous statement was made.

F. Therefore, the court below affirmed the judgment of the court of first instance which found the defendant guilty without failing to exhaust all necessary deliberations, which affected the conclusion of the judgment by misapprehending the legal principles on Article 2(4) of the Illegal Check Control Act. The ground of appeal assigning this error is with merit.

3. Therefore, the part of the judgment of the court below regarding the above violation of the Illegal Check Control Act cannot be maintained as seen above, and the judgment of the court below shall be sentenced to the violation of the above Illegal Check Control Act, the remaining violation of the Illegal Check Control Act, and the crime of breach of trust as stated in the judgment of the court below as concurrent crimes under the former part of Article 37 of the Criminal Act, and it shall be reversed in its entirety and remanded to the court below for a single sentence.

Justices Lee Yong-woo (Presiding Justice)