Whether Article 5 of the former Control of Illegal Check Control Act as to the crime of forging and Altering a check constitutes a provision to punish a violation of Article 214(1) of the Criminal Act as to securities (affirmative), and the matters to be paid in interpreting such provision / Whether the act of punishing under Article 5 of the former Control of Illegal Check Control Act refers to forgery and alteration of the issuance of a check (affirmative), and whether the endorsement of a check constitutes a case where the endorsement of a check is forged or altered (negative)

Article 214 of the Criminal Act provides that “A person who, for the purpose of uttering, counterfeits or alters public bonds of the Republic of Korea or of a foreign country or other securities shall be punished by imprisonment for not more than ten years,” and provides that “A person who, separately, forges or alters entry of the rights and obligations of securities for the purpose of uttering, shall be punished by imprisonment for not more than ten years,” and Article 214 of the Criminal Act provides that “The same shall apply to a person who forges or alters entry of the rights and obligations of securities for the purpose of uttering.”

The purpose of the Illegal Check Control Act is to ensure the safety of the people's economic life and the function of a check, which is a security for circulation of securities by regulating and punishing "issuance" such as illegal checks (Article 1). The person who prepares an illegal check, which is subject to punishment under Article 2 of the former Illegal Check Control Act (amended by Act No. 10185, Mar. 24, 2010; hereinafter "former Illegal Check Control Act"), shall be deemed as the person who prepares the basic requirements for the check in the form of a check. Thus, Article 2 of the former Illegal Check Control Act regulating the issuance of illegal checks is construed as a provision regulating the issuance of illegal checks under Article 2 of the former Illegal Check Control Act. Article 5 of the former Illegal Check Control Act on the crime of forging and falsifying a check provides that "a person who forges or alters a check shall be punished by imprisonment for a fixed term of not less than one year and a fine not exceeding ten times the amount of a check, taking into account the strong circulation and transactional importance of a check, shall be subject to punishment for forgery or alteration of securities.

As seen above, the forgery or alteration of issuance under Article 214 of the Criminal Act indicates the subject matter as “securities” and the forgery or alteration of endorsement, etc. as “statement on the rights and obligations of securities” by dividing the subject matter into “statement on the rights and obligations of securities.” Article 5 of the former Illegal Check Control Act expresses the subject matter of forgery or alteration only as “check”. Article 5 of the former Illegal Check Control Act is a provision that intends to punish a violation of Article 214(1) of the Criminal Act concerning securities, and thus, it is necessary to interpret the scope of punishment so as not to excessively expand.

Therefore, the act of punishing a person in Article 5 of the former Illegal Check Control Act refers to forgery or alteration of the issuance of a check, and in the case of forgery or alteration of endorsement of a check, forgery or alteration of the description of the rights and obligations of a check is forged or altered, and it does not constitute Article 5 of the former Illegal Check Control Act, apart from whether it falls under Article 214(2) of the Criminal Act.

Article 1 of the Control of Illegal Check Act, Articles 2 and 5 of the former Control of Illegal Check Act (Amended by Act No. 10185, Mar. 24, 2010); Article 214 of the Criminal Act

Supreme Court Decision 87Do2555 Decided August 9, 1988 (Gong1988, 1218) Supreme Court Decision 2007Do10100 Decided February 14, 2008 (Gong2008Sang, 420)

Defendant

Defendant

Attorney Lee Gyeong-woo et al.

Suwon District Court Decision 2019No119 decided July 25, 2019

The judgment of the court below is reversed, and the case is remanded to the Gu Government District Court.

The grounds of appeal are examined.

1. Of the facts charged in violation of the Illegal Check Control Act, the summary of the part regarding forgery of the six checks listed in the [Attachment Table 6] No. 1 of the judgment below in the charge of violating the Illegal Check Control Act (hereinafter

On August 27, 2002, the Defendant, at the office of the bond discount business for bill and check “○○○,” which was located in Suwon-si ( Address 1 omitted), forged the check, stating at his own discretion, “The Bank (Name 2 omitted) and Nonindicted Party on May 16, 2002,” the column of the endorser in Chapter 1 [The Bank △△△△△ Branch omitted] of the check number, which was received for checks from the Nonindicted Party.”

2. The judgment of the court below

The lower court, on the following grounds, found that even if an endorsement of a check was forged on the part of another person’s name, it constitutes a violation of Article 5 of the former Illegal Check Control Act (amended by Act No. 10185, Mar. 24, 2010; hereinafter “former Illegal Check Control Act”), and convicted him/her of the issues charged.

Article 5 of the former Illegal Check Control Act only provides that a person who forges a check shall be punished, but does not specify it as a forgery on the issuance of a check. A security act endorsed on a check is also an important security act related to the possibility of payment of a check, and thus, shall be protected as true. Article 2 (Criminal Responsibility of Issuer of Illegal Check) of the former Illegal Check Control Act also provides that a person who prepares a check is punished as well as a person who issues an illegal check shall not be punished.

The Illegal Check Control Act was enacted for the purpose of punishing more strictly than forging other securities in order to secure the importance as a means of circulation and transaction of a check. Article 5 of the former Illegal Check Control Act does not provide for the basic act of securities and incidental securities acts, and it can be said that the document is forged if a person without authority in the language and text prepares a document. Article 214(a) of the Criminal Act as a general juristic person separates the forgery and alteration of the issuance of securities and the forgery and alteration of the attached securities with regard to the issuance of securities. It cannot be said that the case of forging the endorsement of a check is not a forgery of a check.

3. Supreme Court Decision

However, the lower judgment cannot be accepted for the following reasons.

Article 214 of the Criminal Act provides that “Any person who, for the purpose of uttering, counterfeits or alters public bonds of the Republic of Korea or of a foreign country or other securities shall be punished by imprisonment for not more than ten years,” and provides that “any person who forges or alters any description on the rights and obligations of securities for the purpose of uttering shall be punished by imprisonment for not more than ten years,” and in addition, Article 214 of the Criminal Act provides that “any person who forges or alters any description on the rights and obligations of securities for the purpose of uttering shall be punished by the preceding paragraph.”

The purpose of the Illegal Check Control Act is to ensure the safety of the people's economic life and the function of a check, which is a security for circulation of securities by regulating and punishing "issuance" such as illegal checks (Article 1). Since a person who prepares an illegal check, which is subject to punishment under Article 2 of the former Illegal Check Control Act, is deemed to be the person who prepared the basic requirements for a check in the form of a check (see Supreme Court Decision 87Do2555, Aug. 9, 198), it is interpreted that Article 2 of the former Illegal Check Control Act regulates the illegal issuance of a check. Article 5 of the former Illegal Check Control Act regarding the crime of forgery and alteration of a check provides that "a person who forges or alters a check shall be punished by imprisonment for a limited term of not less than one year and not more than ten times the amount of a check, and taking into account the strong circulation of a check and the importance of a transaction method, the act of forgery and alteration of a check among securities does not require "the purpose of uttering a forged element, which is more than the requirement for establishment of a crime."

As seen above, the forgery or alteration of issuance under Article 214 of the Criminal Act indicates the subject matter as “securities” and the forgery or alteration of endorsement, etc. as “statement on the rights and obligations of securities” by dividing the subject matter into “statement on the rights and obligations of securities.” Article 5 of the former Illegal Check Control Act expresses the subject matter of forgery or alteration only as “check”. Article 5 of the former Illegal Check Control Act is a provision that intends to punish a violation of Article 214(1) of the Criminal Act concerning securities, and thus, it is necessary to interpret the scope of punishment so as not to excessively expand.

Therefore, the act of punishing a person in Article 5 of the former Illegal Check Control Act refers to forgery or alteration of the issuance of a check, and in the case of forgery or alteration of endorsement of a check, forgery or alteration of the description of the rights and obligations of a check is forged or altered, and it does not constitute Article 5 of the former Illegal Check Control Act, apart from whether it falls under Article 214(2) of the Criminal Act.

Nevertheless, the lower court found the Defendant guilty of the facts charged on the erroneous premise that the case where an endorsement of a check is forged falls under Article 5 of the former Illegal Check Control Act. The lower court erred by misapprehending the legal doctrine on Article 5 of the former Illegal Check Control Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

4. Scope of reversal

For the foregoing reasons, the key part of the judgment of the court below regarding the facts charged should be reversed. Since the court below rendered a single sentence on the grounds that the key part of the facts charged and the remaining conviction are concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment

5. Conclusion

The judgment of the court below is reversed without further proceeding to decide on the remaining grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Dong-won (Presiding Justice)