(영문) 서울북부지방법원 2013.11.29 2013노1050

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(영문) 서울북부지방법원 2013.11.29 2013노1050

부정수표단속법위반등

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

Provided, That the above punishment shall be imposed for two years from the date this judgment became final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. Since the mistake of facts and misapprehension of legal principles (1) fraud against the victim C is committed by the victim, as the victim lent two promissory notes with the face value of KRW 15,00,000,000 and the face value of KRW 20,000,000 issued by the defendant on May 31, 2012, the amount equivalent to KRW 35,00,000 out of the face value of KRW 53,480,00 paid by the victim C to the defendant is not deemed to constitute the fraud because the victim performed his own debt as the addressee or the first endorsement, and the remaining KRW 18,480,00 cannot be deemed to constitute the fraud. Since the victim borrowed KRW 98,00 from the defendant on May 19, 201 and around May 31, 2012, the victim's intent and the above amount exceeding the amount of KRW 18,00,000 from the victim's bonds at the time of the transaction cannot be deemed to constitute the above victim's money.

(B) Since the victim H used one promissory note with a face value of KRW 10,000,000 at the face value as of May 31, 2012 as of the date of the payment of the issue issued by the Defendant from the Defendant, the victim H’s fraud with the victim H is not deemed to constitute deception because the victim H performed his/her own obligation as the addressee or the first endorsement on the bill and cannot be deemed to constitute deception. The remaining KRW 3,00,000 is more than 3,00,000,000 which the transaction bond amount to be received from the victim H at the time exceeds the amount of KRW 3,00,000 and thus, it cannot be deemed to constitute deception.

(2) The Defendant did not comprehensively transfer all the rights and obligations against D to the J, which is false, but actually transferred for the purpose of continuing the business. The fact of transfer was known to the creditors at the time of transfer, and the victim C should instead receive the Defendant.

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