The scope of the holder of a check under Article 2 (4) of the Illegal Check Control Act, and whether the illegal check may not be prosecuted even in cases where the accomplice wishes to be punished by another accomplice (affirmative)

Article 2(4) of the Control of Illegal Check Control Act provides that if a person who issues or prepares a check receives the check, it shall be deemed that the holder of the check does not wish to punish the accomplice, and it shall be interpreted that the crime under Article 2(2) and (3) of the same Act is stipulated as the crime of non-violation of will. Article 233 of the Criminal Procedure Act, which provides for the principle that complaint and cancellation of complaint in an offense subject to prosecution subject to prosecution, does not apply mutatis mutandis to the crime of non-compliance of will. However, the legislative purport of Article 2(4) of the Control of Illegal Check Control Act is to promote corporate rehabilitation of the person who pays the check by maintaining its original legal function for securing order in the check and collecting illegal checks, so it shall not be deemed that the collection of the check is a passive fact, unlike the case where the holder of the check still holds the check and expresses his intention not to punish it merely. In light of the fact that if an illegal check is collected, it shall not be deemed that the person who has already expressed his intention or his wish to withdraw the check, regardless of the form and condition that it shall not be recovered.

Article 2(4) of the Illegal Check Control Act, Article 233 of the Criminal Procedure Act

Supreme Court Decision 94Do475 delivered on May 10, 1994 (Gong1994Sang, 1566), Supreme Court Decision 95Do1971 delivered on January 26, 1996 (Gong1996Sang, 839)

Defendant

Prosecutor

Daegu District Court Decision 98No4011 delivered on February 5, 1999

The appeal is dismissed.

The grounds of appeal are examined.

Article 2(4) of the Illegal Check Control Act provides that if a person who issues or prepares a check receives it, the check holder shall be deemed to have expressed his/her wish not to punish the check, and it shall be interpreted that the crime under Article 2(2) and (3) of the same Act is stipulated as the crime of non-violation of will (see, e.g., Supreme Court Decisions 95Do1971, Jan. 26, 196; 94Do475, May 10, 1994); and Article 233 of the Criminal Procedure Act, which provides for the principle of complaint and revocation of complaint in an offense subject to prosecution subject to prosecution, does not apply mutatis mutandis to the crime of non-violation of will (see, e.g., Supreme Court Decision 93Do1689, Apr. 26, 199).

However, the legislative purport of Article 2 (4) of the Illegal Check Control Act is to promote corporate rehabilitation of the person who has paid for default by preventing a public prosecution from being instituted in cases where illegal checks are collected while maintaining the original legal function of securing order in the check. Unlike the cases where the holder of the check still holds the check and expresses his/her intention not to punish merely, the fact of collection itself is a passive prosecution, and the intention of the holder is not expressed explicitly and individually, and the possessor at the time of collection cannot exercise his/her right to the check. In light of Article 2 (4) of the Illegal Check Control Act, it is reasonable to view that the bearer of the check who has expressed his/her intention not to refund or punish the check refers to the issuer or the person other than the accomplice, and therefore, if the check has already been recovered by the issuer or the accomplice, it shall be deemed that the illegal check does not exist in the form of "the person who has already expressed his/her intent not to punish the check," and it shall be deemed that there is no other condition to collect the check as an accomplice or the accomplice under Article 2 (4).

In this regard, it is proper that the court below made a decision of dismissal of prosecution by applying Article 327 subparagraph 2 of the Criminal Procedure Act to the facts charged as to five copies of the check already recovered by the non-indicted who is the accomplice prior to the prosecution of this case among the facts charged in violation of the Illegal Check Control Act against the defendant, and there is no error of law by misunderstanding the legal principles as to Article 233 of the Criminal Procedure Act and Article 2 (4) of the Illegal Check

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

Justices Cho Cho-Un (Presiding Justice)