Where a forged check is delivered as payment of existing obligations, the nature of fraud (negative)

It cannot be said that the obligor has acquired the benefit of the discharge of obligation by the obligor, inasmuch as the check offered as the performance of obligation is forged or not, as long as it is insufficient for the obligor to make it impossible for the obligee to perform any act of disposal as property of the obligee, solely on the basis that the obligor has delivered the forged check as the performance of obligation to the obligee is true and correct, and that the obligee has received it as a true check.

Article 347(1) of the Criminal Act

Seoul High Court Decision 82Do2938 delivered on April 12, 1983 (Article 347(36) of the Criminal Act, Article 347(36) of the Criminal Act, Article 347(2) of the Criminal Act, Article 705No850)

Defendant

Defendant

Seoul Criminal District Court (82 Gohap982)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment with prison labor for ten months and by a fine of fifty million won.

When the above fine is not paid, the defendant shall be confined in a workhouse for the period calculated by converting the amount of KRW 5,000 into one day.

The sixty days of detention days before the sentence of the judgment below shall be included in the above imprisonment.

Provided, That the execution of the above imprisonment shall be suspended for two years from the date this judgment becomes final and conclusive.

One seal seized (No. 12) shall be confiscated.

The provisional payment of the amount equivalent to the above fine shall be ordered.

Of the facts charged, the charge of fraud is not guilty

The grounds for appeal by the defendant are that the sentence imposed by the court below against the defendant is too unreasonable.

Before the judgment on the grounds for appeal against the above defendant, the court below examined ex officio the defendant.

(1) On April 21, 1982, issued 100,000 won of the family check in the name of Nonindicted Party 2, which was forged to Nonindicted Party 1, to the victim, as a repayment of debt, to the real amount of 400,000 won of the family check in the name of Nonindicted Party 2, and its members exempted the victim from the payment of 40,000

(2) On May 10 of the same year, the victim non-indicted 3 delivered 4 copies of the household check (one hundred thousand won Won) that was forged to the victim non-indicted 3 as a genuine repayment of part of the debt amount of one million won, and it recognized the fact that it acquired the property profit of the same amount by releasing the debt amount of one million won from the debt amount of one million won, and sought the opinion of Article 347 (1) of the Criminal Act.

However, in order to establish an offense referred to in Article 347 (1) of the Criminal Act, "the acquisition of property benefits by deceiving another person," it is required to allow the defrauded to perform any act of disposal of property and acquire property benefits. As a result, it is required to obtain the above forged checks from the victim to the non-indicted 1 or the non-indicted 3, who is the victim, as a repayment of debt, and the defendant issued the forged checks to the non-indicted 1 or the non-indicted 3 as a repayment of debt, and sent them to the creditor non-indicted 1 or the non-indicted 3 as a true check, and received them as a true check, it cannot be said that there is any act of disposal of the victim's property. Further, since each check provided as a repayment of debt after the legal investigation adopted by the court below is forged, it cannot be said that the existing debt owed to the above non-indicted 1 and 3 is not extinguished, and therefore, the records of this case are examined as follows: the defendant's creditor, who is the creditor of the above non-indicted 1 or 3, has been provided with a fraudulent or other de facto obligation.

Therefore, the court below's finding the guilty of the charge of fraud does not err by misunderstanding the facts or by misapprehending the legal principles of fraud, and the court below's finding the guilty guilty of the facts constituting the above fraud and the remaining facts constituting the concurrent crimes under the former part of Article 37, and the judgment of the court below cannot be exempted from the whole reversal.

Accordingly, the judgment of the court below shall be reversed and the decision shall be rendered again after pleadings pursuant to Article 364(2) and (6) of the Act, which does not require the judgment on the grounds of appeal by the defendant concerning the sentencing.

Defendant,

1. On April 15, 1982: at around 30, Defendant A located in Jongno-gu Seoul Metropolitan Government (number omitted) received 19 copies of a blank bank check issued by Non-Indicted 2, who was stolen by Non-Indicted 4, as a debt reimbursement, even though he was aware that it was stolen, 19 copies of a blank bank check issued by the inner branch of the Defendant for the interesting bank owned by Non-Indicted

2. On April 20 of the same year: around 00, in order to be exercised by Defendant A located in Jongno-gu Seoul Metropolitan Government (number omitted), Nonindicted 5, who is aware of the fact in four copies of the check number Nos. 0104, 01102, 0104, 01112, 0104118, 0104, 0041118, shall be stated as the issuer “Nonindicted 2,000,000,000,0000,0000,0000,0000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00.

3. On April 12, 21 of the same year: Around 00, the victim non-indicted 1 A located in Eunpyeong-gu Seoul Metropolitan Government Hongdong presented 40,000 won of the forged household check to Non-indicted 1 as the group of debt reimbursement at around 00,000 won;

4. On May 15, 200 : around 00, the defendant paid to the victim non-indicted 3 as the debt amount of KRW 1,00,000,000 which is the true and genuine four copies of the forged household check at the Aro-Macon bank located in Jongno-gu Seoul Metropolitan City as the land for Jongno-gu.

The facts stated in the ruling:

1. Statement suitable for this by the defendant at the original court.

1. Each protocol of interrogation of the accused, Nonindicted 4, and Nonindicted 3 prepared by prosecutors and judicial police officers handling their affairs, and each statement corresponding thereto is recorded.

1. Each statement of Nonindicted 2 and 5 prepared by the judicial police officer to deal with his/her affairs, and each statement suitable therefor.

1. The statement prepared by Nonindicted Party 1, which is consistent with this.

1. There may be a comprehensive recognition of the existence, etc. of 11 copies and one seal (No. 1 to 12) of seized household checks;

Of the so-called ruling of the defendant, Article 362 (1) of the Criminal Act provides that "the second term is Article 5 of the Illegal Check Control Act, Article 3, and Article 214 (1) of the Criminal Act shall apply mutatis mutandis to the crime of acquiring stolen goods and the crime of fraud as stated in the ruling that each forged check falls under Articles 217 and 214 (1) of the Criminal Act. Since the above crimes are concurrent crimes under the former part of Article 37 of the Criminal Act, Article 38 (1) 2 and Article 50 of the Criminal Act provides that "the above crimes of acquiring stolen goods shall be punished by imprisonment," Article 53 and Article 55 (1) 3 of the Criminal Act provides that "the period of imprisonment shall be 10 years and a fine shall be 50 million won, and if the above crimes are concurrent crimes under Article 38 (1) 2 and Article 50 of the Criminal Act, the above crimes shall be punished by imprisonment with prison labor for a period not exceeding 60 days prior to the above punishment."

Of the facts charged in this case, the Defendant

(1) On April 21, 1982: around 00, the victims, non-indicted 1A located in Eunpyeong-gu Seoul Metropolitan Government Hongdong, delivered 4 100,000 won of household checks forged to non-indicted 1 (a) as debt repayment, and its members are exempted from the payment of 40,000 won of the debt amount, thereby acquiring the property benefits of the same amount.

(2) On May 15 of the same year : 00 Seoul Jongno-gu located in Aropo-gu, Jongno-gu, 00 Seoul, delivered 4 copies of the household check that is forged to non-indicted 3 as a genuine performance of part of the debt amount of KRW 1,00,000 among the debt amount of KRW 1,000,000,000, and its members acquired the property benefits of the same amount of money by releasing the debt amount of KRW 4,000,000,000,000, out of the debt amount of KRW 1,000,000,000,000

It is so decided as per Disposition for the above reasons.

Judges Gyeong-Gyeong (Presiding Judge)