[1] Whether a person who is not an issuer of a check may be the subject of a violation of Article 4 of the Control of Illegal Check Act (negative), and whether the same crime may be committed in the form of an indirect offender (negative)

[2] In a case where a check is issued by borrowing the name from a third party, whether the nominal borrower can be the subject of a violation of Article 4 of the Control of Illegal Check Act (negative)

[1] Article 4 of the Illegal Check Control Act, Article 34 (1) of the Criminal Code / [2] Article 4 of the Illegal Check Control Act

[1] [2] Supreme Court Decision 2002Do5939 Decided January 24, 2003 (Gong2003Sang, 754) Supreme Court Decision 2006Do7318 Decided March 15, 2007 / [1] Supreme Court Decision 92Do1342 Decided November 10, 192 (Gong193Sang, 162)

Defendant

Defendant

Seoul Southern District Court Decision 2013No203 decided October 25, 2013

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

The grounds of appeal are examined.

According to the records, the defendant appealed against the judgment of the court of first instance and asserted only unfair sentencing as the grounds for appeal. In this case, the argument that there is an error of law in the misapprehension of legal principles is not a legitimate ground for appeal, but the court of final appeal may render an ex officio decision even if the judgment of the court below is not included in the grounds for final appeal under Article 383 subparagraphs 1 through 3 of the Criminal Procedure Act, and the grounds for final appeal claiming this issue are the meaning of demanding ex officio request (see Supreme Court Decision 2009Do11407, Jan. 28, 2010, etc.).

Article 4 of the Illegal Check Control Act requires “the purpose of evading a disposition to pay the amount of a check or to suspend transaction.” In light of the fact that the person liable to pay the amount of a check or the person subject to a disposition to suspend transaction is limited to the drawer, the person who is not an issuer can not be the subject of a violation of Article 4 of the Illegal Check Control Act, and the person who is not an issuer may not commit the crime in the form of an indirect offender by using an issuer who has not filed a false report. Even when a check is issued by borrowing the name from another person, the person whose amount of a check is disbursed in the bank account or whose transaction is suspended shall be the name of the issuer of a check, and even if a check is presented, the person who has entered into a contract with a bank that is the payer of a check shall be deemed the subject of a violation of Article 4 of the Illegal Check Control Act (see, e.g., Supreme Court Decision 2003Do539, Jan. 24, 2003).

According to the reasoning of the judgment of the court of first instance and the record, the Defendant issued a statement of the number of shares per face value of KRW 10 million in the name of the representative director of the non-party 1 corporation at the end of February, 201 (hereinafter “instant number of shares”). On March 30, 2011, the Defendant made a false statement to the effect that the face value of the instant number of shares presented to the payment bank on March 30, 201, was altered from KRW 3 million to KRW 10 million, and requested the suspension of payment of the instant number of shares. At the time of issuance of the instant number of shares, as well as at the time of false report, the representative director of the non-party 1 corporation was not the Defendant but the non-party 2.

Examining these facts in light of the legal principles as seen earlier, the Defendant cannot be the subject of the crime of violating Article 4 of the Illegal Check Control Act solely on the ground that the Defendant filed a false report on the current number of units with the financial institution, since it is not the name of issuance of the current number of units.

Nevertheless, on different premises, the lower court affirmed the first instance judgment convicting the Defendant of violating Article 4 of the Illegal Check Control Act by filing a false report on the instant party allotment table with the financial institution. In so doing, the lower court erred by misapprehending the legal doctrine on the subject of an act under Article 4 of the Illegal Check Control Act, thereby adversely affecting the conclusion of the judgment.

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 So-young (Presiding Justice)