In a case where a person who borrowed a name from a third person and issued a check in collusion with the issuer of the check, whether the person can be the subject of a false report under Article 4 of the Illegal Check Control Act (affirmative)

Article 4 of the Illegal Check Control Act

Supreme Court Decision 94Do3348 delivered on December 12, 1995

Defendant

Prosecutor and Defendant

Gwangju District Court Decision 2005No319 Decided August 12, 2005

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

1. As to the Defendant’s ground of appeal

In light of the records, the court below is just in finding the defendant guilty of violating Articles 3(1) and 2(2) of the Illegal Check Control Act among the facts charged in this case by compiling the adopted evidence, and there is no violation of the rules of evidence against the rules of evidence as alleged in the grounds of appeal.

In a case where a defendant filed an appeal and the judgment of the court below is reversed, the whole number of days of pre-trial detention after filing an appeal is included in the principal sentence pursuant to Article 482(1)2 of the Criminal Procedure Act. Thus, in this case where the court below reversed ex officio the judgment of the court of first instance and rendered a judgment of the court of first instance against the defendant, the whole days of pre-trial detention before the judgment of the court of first instance is included in the court of first instance. Thus, it is natural that the court below did not indicate that the days of pre-trial detention are included in the principal sentence (see Supreme Court Decisions 87Do2696, May 24, 198; 9Do3460, September 21, 199, etc.). The ground of appeal that the court below erred in the calculation of the days of pre

2. As to the prosecutor's ground of appeal

A. On November 19, 2001, the court below held that the defendant, as the representative director of the non-indicted 1 corporation, made a false statement in collusion with the non-indicted 2, the representative director of the company in the name of the above company, and that on November 19, 2001, one copy of the check number last 0145690, par value 10,000, issue date of the above bank first 1 December 18, 2001, for the purpose of avoiding the payment of the check amount, the court below held that the defendant submitted a false statement to the effect that the amount of face value was altered from 5,00,000,000 won, and thus, submitted a false statement to the court to the effect that the defendant did not request the alteration of the check account transaction agreement with the second-party 2, the issuing name of the check, and did not examine and determine whether the defendant made a false statement in the name of the second-party corporation and the issuing name of the check second-party.

B. However, even if a person who borrowed a check from another person and issued it can be the subject of the crime of false report under Article 4 of the Illegal Check Control Act, in collusion with the issuer of the check (see Supreme Court Decision 94Do3348 delivered on December 12, 1995). The court below should have deliberated and judged whether the defendant conspireds with the non-indicted 2, who is the issuer of the check, to report the false report.

Nevertheless, the court below erred by misapprehending the contents of the facts charged and the legal principles as to the crime of false reporting under Article 4 of the Illegal Check Control Act and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below which pronounced not guilty cannot be reversed, and since the remaining criminal facts and concurrent crimes under the former part of Article 37 should be sentenced to one sentence, the entire judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)