[1] The meaning of the holder who can express his intention not to punish him under Article 2 (4) of the Illegal Check Control Act

[2] The case reversing the judgment of the court below on the ground that the person who submitted a written confirmation of non-existence of punishment was not examined as to whether he is the holder of the check at that time

[1] In the case of a violation of Article 2 (2) of the Illegal Check Control Act, if the holder of the check in question, prior to the pronouncement of the judgment of the court of first instance, expresses his intention not to be punished by the drawer, a dismissal of prosecution shall be ordered. The holder who can express his intention not to punish him refers to the holder at the time of the presentation of such intention, and if the check in question is recovered to the electronic person after the refusal of payment, it constitutes the person who actually holds the check in question. If the check in question was lost, the holder at the time of the loss of the check in question can express his intention not to punish him.

[2] The case reversing the judgment of the court below on the ground that the person who submitted a written confirmation of non-existence of punishment was not examined as to whether he is the holder of the check at that time

[1] Article 2 (4) of the Illegal Check Control Act / [2] Article 2 (4) of the Illegal Check Control Act, Article 327 subparagraph 6 of the Criminal Procedure Act

Defendant

Defendant

Attorney Kang Han-soo et al.

Busan High Court Decision 95No482 delivered on July 12, 1995

The judgment below is reversed, and the case is remanded to Busan High Court.

The defendant and his defense counsel's grounds of appeal are examined.

1. Examining the reasoning of the lower judgment and the reasoning of the first instance judgment maintained by the lower court in light of the records, the lower court’s finding the Defendant guilty of each crime of habitual fraud and injury as to the Defendant’s judgment is just and acceptable. In so doing, the lower court cannot be deemed to have failed to exhaust all necessary deliberations or unlawful rules of evidence against the rules of evidence, such as the theory of lawsuit, etc., and thus, it cannot be accepted as it criticizes the selection

2. In the case of a violation of Article 2 (2) of the Illegal Check Control Act, if the holder of the check in question, prior to the pronouncement of the judgment of the court of first instance, expresses his intention not to be punished by the drawer, the rejection of the prosecution shall be sentenced. The holder who can express his intention not to punish him refers to the holder as at the time of the presentation of such intention, and if the check in question is recovered to the electronic person after the refusal of payment, it constitutes the person who actually holds the check in question. In this case, if the check in question was lost, the holder at the time of loss can express his intention not to punish him.

According to the records, the check of this case was presented for payment by Kim Jin-young, and it can be found that the non-party Kim Jin-young was refused to pay the check of this case, and that the non-party Park Jong-young, who operated the "Semulgion" on April 10, 1995, prior to the date of the declaration of the first instance, submitted a written confirmation that he was unable to be punished by the defendant because he was lost while he was paid damages (the trial record 393 pages), and then submitted it to the court below that the defendant recovered the check of this case, and on the other hand, it can be recognized that the check of this case was "Semulging adjacent to the crossing sign of the check of this case." Thus, it can be deemed that the court below erred in the misapprehension of legal principles as to the violation of the Control Act, which affected the conclusion of the judgment of this case by failing to exhaust all necessary deliberations as to whether the above gambling application of this case constitutes the holder of the check of this case.

3. Therefore, the judgment of the court below which sentenced a single punishment as concurrent crimes under the former part of Article 37 of the Criminal Act is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-soo (Presiding Justice)