The case holding that even if the representative director in form, who entered into a check contract with the bank was not involved in the management of the company as the nominal lender, he cannot be exempted from liability for violation of the Illegal Check Control Act due to the fact that he could have predicted the possibility of not being paid on the date of presentation at the time of issuance of the check,

The case holding that even if the representative director in form, who entered into a check contract with the bank was not involved in the management of the company as the nominal lender, he cannot be exempted from liability for violation of the Illegal Check Control Act due to the fact that there was a possibility of not being paid on the date of presentation at the time of issuance of the check in light of various

Article 2 of the Illegal Check Control Act

Supreme Court Decision 81Do1596 delivered on August 25, 1981 (Gong1981, 14309) Supreme Court Decision 82Do2103 Delivered on June 14, 1983 (Gong1983, 1108) Supreme Court Decision 94Do1799 Delivered on November 8, 1994 (Gong194Ha, 3313)

Defendant

Prosecutor

Seoul Eastern District Court Decision 2006No1058 Decided February 8, 2007

The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.

The grounds of appeal are examined.

1. The court below acknowledged the fact that the defendant accepted the non-indicted 1 corporation and carried on business by the non-indicted 2's request that the defendant becomes a representative director in the form of the defendant and entered into a check contract with the Korean bank name branch around December 22, 2004. After the defendant became the representative director in the name of the defendant, the non-indicted 2 dealt with all of the above business of the company independently and the defendant did not attend the company and did not participate in the business at all. The court below found the fact that the check in the facts charged of this case was non-indicted 2 was non-indicted 2's issuance of the check after using the defendant's official seal kept in the company without special relation with the defendant, even if the defendant entered into the check contract as the representative director, and there was no evidence that the defendant knew about the financial situation of the above company, the court below found the defendant not guilty of the facts charged.

2. However, according to the records, the defendant, upon the request of Nonindicted 2, who is a bad credit holder, allowed the conclusion of a check contract with the defendant as representative director, and accepted the issuance of a check pursuant to such contract, and the check that has been issued within the short period of time was not settled. In light of these circumstances, it is reasonable to deem that the defendant could have anticipated that the check issued by Nonindicted 2 could not be paid on the date of presentation. Unless there are special circumstances, such as the defendant's withdrawal of the above permission prior to the issuance of the check in this case and opposed to the issuance of the check in this case, the defendant cannot be exempted from the responsibility of violating the Illegal Check Control Act following the issuance of the check.

3. Nevertheless, the court below found the defendant not guilty on the ground that the defendant was not at all involved in the management of the above company after lending the name of the representative director, on the ground that there was no possibility of predicting the occurrence of the result that the defendant would not be paid on the date of presentation at the time of the issuance of the above check. The court below erred by misapprehending the legal principles, which led to the failure to exhaust all necessary deliberations as to the possibility of occurrence of the result

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)