Whether a judgment of conviction shall be rendered without a defendant's statement under Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Transmission of Lawsuit against a defendant indicted for a violation of Article 2 of the Illegal Check Control Act, and in case where a default check is recovered before the judgment of the court of first instance in the retrial case commenced by the defendant for a retrial under Article 23-2 of the same Act is declared (affirmative)

Article 2 (4) of the Illegal Check Control Act provides that a person who has issued or prepared a check shall not be prosecuted against the clearly expressed will of the check holder even if the check is not recovered or withdrawn, and in such a case, the decision of dismissal of the check shall be pronounced. In such a case, it shall be interpreted that the decision of dismissal shall be made before the decision of the court of first instance is rendered. The decision of the court of first instance is interpreted that a person who does not wish to recover the check or to punish the check holder shall be made before the decision of the court of first instance is made. If the decision of the court of first instance is rendered pursuant to the special provisions of the main sentence of Article 23-2 of the Act on Special Cases concerning the Promotion, etc. of Forwarding, etc., and the defendant cannot attend the trial due to a cause not attributable to the defendant and the decision of commencement of the trial is made, the defendant has no opportunity to defend the check at the court of first instance, and in such a case, the request for retrial shall be made immediately prior to the decision of the court of first instance.

Article 2(4) of the Illegal Check Control Act, Article 232(1) and (3) of the Criminal Procedure Act, Article 23 and Article 23-2 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings

Supreme Court Decision 94Do475 delivered on May 10, 1994 (Gong1994Sang, 1373 delivered on March 22, 1994) Supreme Court Decision 95Do1367 delivered on October 13, 1995 (Gong195Ha, 3841)

Defendant

A co-inspector;

Attorneys Yoon Jong-pop et al.

Busan District Court Decision 2001No2873 delivered on February 19, 2002

The appeal is dismissed.

Article 2(4) of the Illegal Check Control Act provides that a person who has issued or prepared a check shall not be prosecuted against the clearly expressed will of the check holder even though the check holder is not recovered or withdrawn, and in such a case, the decision of dismissal of the check shall be pronounced. In such a case, the expression of intention not to recover the check or to punish the check holder shall be interpreted as having to be made prior to the declaration of the first instance judgment (see Supreme Court Decision 95Do1367 delivered on October 13, 1995, etc.).

However, in the case where the first instance judgment was sentenced pursuant to the special provisions of the main sentence of Article 23 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings and the defendant was unable to attend the trial due to a cause not attributable to him, a request for retrial is made pursuant to Article 23-2 of the same Act and the decision to commence a retrial is made, the defendant was not given an opportunity to defend him in the first instance trial and the request for retrial is allowed for this reason. Thus, in this case, it is reasonable to interpret that the above indication of intention not to recover a default check or to punish the holder of a check will be made before the first instance judgment is sentenced

Therefore, the decision of the court below that sentenced the defendant to whom the whole default checks were recovered during the trial of the court of first instance under the Act on Special Cases Concerning the Control of Illegal Check, is just, and there is no error of law by misapprehending the legal principles on the dismissal of a public prosecution or the retrial procedure, etc.

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

Justices Kim Ji-dam (Presiding Justice)