Whether the act of discounting a bill constitutes a separate fraud in a case where the defendant obtains a discount from a third party after acquiring by deceit the bill (affirmative)

[1] Article 347 of the Criminal Code

Supreme Court Decision 99Do3590 Delivered on September 5, 2000

Defendant

Prosecutor

Attorney Park Jong-soo

Seoul Northern District Court Decision 2005No91 Decided June 30, 2005

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

We examine the grounds of appeal.

1. Summary of the facts charged and the judgment of the court below

The summary of the facts charged of this case is that the defendant, even if he had no intention or ability to give a subcontract to the non-indicted 1, 69-1 located in the Sinsan City at the time of August 12, 1997, he received one promissory note from the non-indicted 1 to give a subcontract to the non-indicted 1, even though he did not know that the non-indicted 2 would not have the capacity to pay the above amount of the bill at the time of the payment of the bill, and the defendant could not be seen as having acquired the above amount of the bill at the time of the payment of the bill, because the non-indicted 2 would not have the capacity to pay the amount of the bill at the time of the payment of the bill at the time of the non-indicted 1, i.e., the above non-indicted 2, the defendant could not be seen as having acquired the above amount of the bill at the time of the payment of the bill at the time of the non-indicted 2's purchase of the bill at the time of the above payment of the bill.

2. The judgment of this Court

The above judgment of the court below is not acceptable for the following reasons.

The act of hiding and discounting a promissory note acquired by deceit to a third party who is aware of such fact constitutes a new fraud in a proximate causal relationship between the act of deception and the act of delivering discount money, as it infringes a new legal interest separate from the original fraud. Even if the third party who acquired the promissory note is bona fide and the issuer or endorser of the promissory note has the intent to pay the amount of the promissory note, such circumstance does not affect the establishment of fraud (see Supreme Court Decision 99Do3590 delivered on September 5, 200).

Therefore, in this case, if the defendant, even though he acquired the above promissory note from Non-Indicted 1, was concealed and received a discount on the above promissory note, such act shall be deemed to constitute a new crime of fraud.

Nevertheless, the court below decided to the effect that the act of discounting the above promissory note cannot be deemed to constitute a new fraud on the sole basis of the fact that the above promissory note was acquired by deceit, on the grounds as stated in its reasoning. This decision of the court below is erroneous in the misapprehension of legal principles as to fraud, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)