Whether fraud is established in a case where, even though the issuer of a household check is aware of the fact that he/she is in possession of another person, a judgment of nullification has been obtained from the court on the ground of false loss (affirmative)

With knowledge of the fact that the issuer of a household check received and possessed by another person, if he/she applies for a public summons for the lawful payment of the check, and even though he/she bears the duty of recourse on the check, he/she applies for a public summons on the grounds of false loss, and thereby obtains financial benefits equivalent to the amount of the check by releasing his/her obligation upon receiving a judgment of nullification from the court, such act constitutes fraud.

Article 347 of the Criminal Act, Article 458 of the Civil Procedure Act

Supreme Court Decision 75Do634 delivered on July 27, 1976 (Gong1976, 933) Supreme Court Decision 94Do3213 delivered on September 15, 1995 (Gong195Ha, 3474)

Defendant

Defendant

Seoul District Court Decision 98No4150 delivered on December 18, 1998

The appeal is dismissed.

We examine the grounds of appeal.

Examining the adopted evidence of the first instance court maintained by the court below in light of the records, the defendant can be recognized as acquiring property benefits equivalent to the check amount by requesting a public summons for the reason of false loss, and thereby releasing the obligation on the check by obtaining a judgment of nullification from the court, even though he/she knew that he/she is in possession of the family coefficient check issued by him/her, even though he/she was lawfully presented for payment of the check, and even though he/she bears the duty of recourse on the check, he/she shall apply for a public summons for the reason of false loss. Thus, such act of the defendant constitutes fraud (see Supreme Court Decision 94Do3213, Sept. 15, 1995). Thus, it is proper that the court below found the defendant guilty of the crime of this case against the defendant, and dismissed the defendant's appeal against the judgment of the first instance court by recognizing

In addition, even if the defendant issued and delivered the provisional coefficient check to the bondholder in order to be discounted, and did not receive the discounted price, the holder who acquired the check in good faith cannot assert such reason, and even if examining the record, there is no special circumstance such as the defendant did not bear any obligation on the check from the beginning.

The grounds of appeal cannot be accepted.

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

Justices Cho Chang-hoon (Presiding Justice)