The case holding that the check constitutes a check under Article 2 (2) of the Illegal Check Control Act, in case where the payer for payment deleted the phrase of non-payment under the agreement with the paying bank and again presents the payment after presenting the check for payment.

The case holding that the check constitutes a check under Article 2 (2) of the Illegal Check Control Act, in case where the check is presented after the expression of non-payment was written on the basis of the presentation for payment and the expression of non-payment was deleted under the agreement with the payment bank and the return was presented again.

Article 2 (2) of the Illegal Check Control Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Defendant

Prosecutor

Attorney Kim Tae-tae

Gwangju District Court Decision 96No972 delivered on November 6, 1997

The non-guilty part of the judgment below shall be reversed, and that part of the case shall be remanded to the Panel Division of the Gwangju District Court.

The prosecutor's grounds of appeal are examined.

The court below found that the defendant, the representative director of the non-indicted corporation (hereinafter referred to as the "non-indicted corporation") issued in blank two copies of the check number per second (299482, Ma 2959483) at the subordinate branch of the Gwangju Bank on December 13, 1991 when opening the current account and conducting check transactions at the YY branch of the Korea Commercial Bank, the non-indicted corporation (hereinafter referred to as the "non-indicted corporation") was not guilty of the non-indicted corporation's non-indicted 160,00,000 and 100,000,000 and 200,000,000 and 190,000,000 and 192,000,000 and 200,000,000,000,000 from the 2nd branch of the Gwangju Bank on December 5, 1992 for the non-indicted Bank's non-indicted bank's new shares to be paid.

However, according to the above list of units (not more than 51 pages of investigation records), if the non-indicted company, as the issuer of Gwangju Bank, had the above 6th anniversary of its own investigation record (15th page), the public notice of the request for return of the number of units of Gwangju Bank and the copy of the substitute bill (not more than 247 pages of trial records), etc., and the fact-finding results on the Seoul Branch of Gwangju Bank (not more than 228 pages of trial records), it is deemed that the above statement of the number of units is issued as security for checking obligations of the loans the industry bears to the subordinate branch of Gwangju Bank, and it is difficult to find that the non-indicted company, as the issuer of Gwangju Bank, had the above 6th of Apr. 14, 192, exchanged the above 6th of the number of units using the 6th of outstanding bill to exchange the 9th of outstanding bill without the consent of the defendant for the above 9th of the previous 6th of the number of units of shares, and issued the 6th of outstanding bill to the Corporation.

If the facts are as above, it shall be deemed that Gwangju Bank's subordinate branch's order was placed in the distribution state the same as the situation prior to the presentation of payment because the phrase of non-payment stated in the above party's order was deleted by the payment bank, and thus the above party's order was possessed by the original holder of the check recovered from the above party's order. Thus, in light of the legislative purpose of the Illegal Check Control Act to ensure the stability of the economic life of the people and the function of the check, the above party's order constitutes a check subject to Article 2 (2) of the Illegal Check Control Act, and therefore, the defendant shall bear criminal liability for the non-payment of the above party's order.

Nevertheless, the court below found this part of the facts charged as not guilty for the above reasons. The court below erred by misapprehending the legal principles on checks under Article 2 (2) of the Illegal Check Control Act or by violating the rules of evidence, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

Therefore, the non-guilty part of the judgment below is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)