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(영문) 대법원 1981. 9. 22. 선고 81도1661 판결

[관세법위반ㆍ방위세법위반ㆍ부정수표단속법위반ㆍ특정범죄가중처벌등에관한법률위반][공1981.11.15.(668),14396]

Main Issues

The intention of violating Article 2 (2) of the Illegal Check Control Act;

Summary of Judgment

The crime of violation of Article 2 (2) of the Illegal Check Control Act is established when the issuer issues a check with the expectation that the check will not be paid on the date of presentation due to the shortage of deposits. Thus, if the check was issued without any measures to secure a considerable amount of deposits or a certain amount of deposit, the intent of the above crime exists. The fact that the check holder offered payment in violation of the initial promise does not affect the establishment of the above crime.

[Reference Provisions]

Article 2 (2) of the Illegal Check Control Act

Reference Cases

Supreme Court Decision 81Do181 delivered on September 22, 1981

Defendant-Appellant

Defendant

Defense Counsel

Attorney Kim Tae-tae (Korean)

Judgment of the lower court

Seoul High Court Decision 80No2155 delivered on April 22, 1981

Text

The appeal is dismissed.

Reasons

The grounds of appeal by defense counsel are examined.

In the reasoning of the judgment, it cannot be said that the court below erred because it did not use daily evidence so that it is possible to ascertain which fact with any evidence was admitted (Supreme Court Decision 69Do1219 delivered on September 23, 1969, Supreme Court Decision 70Do2376 delivered on December 29, 1970, etc.). Thus, as the theory of lawsuit was pointed out, the court below ruled that the defendant's assertion of mistake is groundless in light of various evidences duly examined and adopted by the court of first instance, and even if the court did not provide specific evidence explanation and judgment, it cannot be said that the court below committed an unlawful act such as failure to determine the grounds for appeal. Thus, this argument is groundless.

The defendant's grounds of appeal are examined.

According to the first point, the judgment of the court below and the first instance court as cited by the court below, the defendant did not obtain an import license, and the defendant did not err in matters of law by violating the rules of evidence or misconception of facts due to a lack of deliberation and incomplete deliberation between March 4, 1980 and March 15, 198, between 1.6 U.S. E. E. E. Electronic Co., Ltd. factory and 20,000 L. 48,277 won, imported from Japan, from the place of other bonded facilities of the factory of the non-indicted E.S. E. E. E. E. E., Ltd., without obtaining an import license, were voluntarily withdrawn from the place of the above storage and then evaded customs duties amounting to 5,693,532 won and defense tax amount to 711,691 won. Thus, the court below erred by misapprehending the legal principles as to the above crime of 100 U.S. E. E. E. E. 30, 1975.

No. 2, and Article 2 (2) of the Illegal Check Control Act is established when the issuer issues a check that the check will not be paid on the date of presentation due to the shortage of deposits. Thus, if the check was issued without any measures to secure a considerable deposit or a definite check deposit for the payment of the check amount, it constitutes a violation of the Illegal Check Control Act. In light of the records, there is no circumstance that the defendant is liable to secure the check amount, and therefore, it is just that the court below decided that the defendant was in violation of the Illegal Check Control Act, and it is just that the court below committed a violation of the Illegal Check Control Act. The circumstance that the defendant was issued for the purpose of guaranteeing the return of the investment amount as pointed out in the lawsuit or the payment was presented in violation of the initial promise is nothing more than the reason for internal consideration, and there is no other ground to see that the court below erred in the legal principles of the Illegal Check Control Act.

In the case of this case where the third point and the defendant are sentenced to imprisonment for less than 10 years, the reasons during the sentencing shall not be a legitimate ground for appeal. The arguments are groundless.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ju (Presiding Justice)