Defendant

Both parties

Kim Jong-Gyeong

Attorney Shin Dong-ho

Gwangju District Court Decision 2007 Godan9 Decided December 5, 2008

The guilty portion of the judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for a term of one year and two months.

The forty-six days of detention before pronouncement of the judgment below shall be included in the above sentence.

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. Defendant (as to the guilty part of the lower judgment)

(1) misunderstanding of facts

The issuer of the check number No. 11 listed in the attached Table 1 is Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court) who is the representative director of ○○○ (hereinafter “the above company”), and most of them are issued by Nonindicted Party 1 solely after the Defendant settled a partnership with Nonindicted Party 1. In particular, the check number No. 5 (the check number omitted, face value No. 17,000,000) and No. 9 (the check number omitted, face value No. 100,000) are not all involved in the issuance, and since the Defendant was unaware of the issuance, it was impossible to recognize or anticipate that the above check was not paid on the date of payment. Thus, the court below erred by misunderstanding the fact that the judgment affected the conclusion of the judgment.

(2) Unreasonable sentencing

In light of the various sentencing conditions of this case, the punishment sentenced by the court below to the defendant (one year and six months of imprisonment) is too unreasonable.

B. Prosecutor (as to the acquittal portion of the lower judgment)

According to the statement of Nonindicted Party 1, it may be sufficiently recognized that the Defendant, in collusion with Nonindicted Party 1, issued a letter 11 of the number of shares per attached Table 2, in collusion with Nonindicted Party 1, and the lower court committed an unlawful act that affected the conclusion of the judgment.

2. Judgment on the defendant's assertion of mistake of facts

(a) Basic facts;

The following facts can be acknowledged in full view of the evidence duly examined and adopted by the court below and the court below.

① Around June 2004, the Defendant established the said company, which was located in Daegu New Cancer (hereinafter referred to as the “location omitted”), as Nonindicted 1 and the partnership business.

② Nonindicted 1 was in charge of the representative director of the above company, and the Defendant actually operated the above company without any office.

③ Since November 25, 2004, the Defendant and Nonindicted Party 1 opened a new-dong branch of the Daegu Bank and a current account from November 25, 2004 and made a current account transaction.

④ When the management of the above company was difficult due to almost little sales, the Defendant, on January 13, 2005, drafted an agreement with Nonindicted Party 1 to give up the business partnership with respect to the above company and to bear all civil and criminal responsibilities arising in relation to the above company after that date on the condition that the above company is transferred to Nonindicted Party 1.

⑤ After February 7, 2005, Nonindicted Party 1’s operation of the said Company was suspended from trading on February 14, 2005, and the current account on February 14, 2005.

6. On the other hand, even though the holders of Section 22 of the Current Schedule of Shares listed in the annexed Table 1 and 2 presented payment to the above bank within the time limit for presentment for payment, they did not pay it as non-transaction.

B. Determination

(1) First, we examine the remaining checks, excluding the check Nos. 5 and 9, out of the check number tickets listed in the annexed Table 1.

The following circumstances can be acknowledged by the evidence duly investigated and adopted by the court below. ① The Defendant, in collusion with Non-Indicted 1 in the prosecutor’s office and court of the court below, issued the remaining checks except for the check Nos. 5 and 9, and Nos. 21 from among the check number tickets listed in the annexed Table 1, but the Defendant denied the issuance of the check and the criminal intent at the court of the trial. However, there is no explanation to the reversal of the statement at the court of the trial, and it is difficult to believe it as it is in light of the attitude of the statement at the court of the trial. ② The Defendant stated that the issuance of the check number No. 21 was not well memory at the prosecutor’s office. However, in full view of the fact that the Defendant made a confession that it was issued at the court of the court of the court below, and that Non-Indicted 2, who discounted the above check was issued by the Defendant, was also issued and disposed of the check in collusion with Non-Indicted 1.

(2) Next, we examine the list of shares No. 5 as indicated in the list of crimes No. 1.

The following circumstances, which can be recognized by the evidence duly investigated and adopted by the court below and the court below, are: (a) the Defendant, while making a confession in collusion with Nonindicted Party 1 at the prosecutor’s office, the Defendant denied the issuance of the check and the criminal intent of the Defendant at the court below and the court at the court at the trial; (b) there is no explanation to understand the reversal of the statement; and (c) in light of the attitude of statement in the court at the trial at the trial at the court at the trial, it is difficult to believe it as it is; (d) the Defendant made a concrete statement at the prosecutor’s office on the actual issue date, place, purpose and circumstance of the check; and (e) the Defendant classified Nonindicted Party 1 as the issuer of the check at the court at the above trial at the court at the court at the court at the trial at the trial at the court at the trial at the court; (e) however, it can be sufficiently recognized that the check was issued in collusion with the Defendant and Nonindicted Party 1, and denied the issuance.

On the other hand, the defendant and his defense counsel asserted that the last holder of the above check received the above check from the non-indicted 1 and filed a complaint with the non-indicted 1, and the criminal procedure is in progress. The non-indicted 3, the representative director of the above company, stated that the non-indicted 1 received the promissory note 5,00,000,00 on June 14, 2005, directly from the non-indicted 1 as the electrical construction price, the above check was issued by the non-indicted 1, but this alone does not interfere with the recognition of the above facts.

(3) Finally, we examine the list of shares No. 9 stated in attached Table 1.

Even if the issuer is not a nominal issuer or a direct issuer, he/she may become a joint principal offender with a crime of violation of Article 2(2) of the Illegal Check Control Act by a public offering (see Supreme Court Decision 93Do1341, Jul. 13, 1997). In addition, the crime of violation of Article 2(2) of the Illegal Check Control Act is established at the time when the issuer issues a check, which is anticipated that the crime of violation of Article 2(2) of the Illegal Check Control Act would not be paid on the date of presentation due to the shortage of deposits, etc., even if the check is unexpected, and there was a belief that the check will not be paid, and the check will not be presented on the date of payment, barring any special circumstances such as there was a justifiable reason to believe that the check is not presented on the date of issuance, or that there was a reason for the issuance or suspension of the check, etc. (see Supreme Court Decision 200Do2190, Sept. 5, 200).

In light of the following circumstances which can be recognized by the court below and the court below based on the evidence duly examined and adopted, ① the defendant denies the issuance of the check by the prosecutor’s office to the original court and the court of the first instance. Nonindicted Party 1 also stated that the check was issued by himself; but its purpose appears to be that Nonindicted Party 1 voluntarily issued the check without the defendant’s consent; ② the defendant stated at the prosecutor’s office that the check was issued during the winter period with Nonindicted Party 1; ③ the above check was issued as the settlement price for the Yellow Mazk Co., Ltd. purchased from the above company; ④ the defendant and the non-indicted 1 issued the check to raise funds for payment and operation of the goods purchased by the above company during the winter period; ⑤ the defendant did not have any special reason to deem that the above check was issued in collusion with the above non-indicted 1 at the time of the issuance; ② the defendant and the non-indicted 1 did not have any duty to explain that the check was issued within the fixed period of 10 days before the issuance of the check.

(4) The theory of lawsuit

Therefore, this part of the defendant's assertion that the above number of units was not issued and that there was no intention to default is without merit.

3. Judgment on the Defendant’s assertion of unreasonable sentencing

It is recognized that the sum of checks which were not paid due to the instant crime exceeds KRW 2.10 million, and the Defendant committed the instant crime during the period of repeated crime even though he was sentenced to a three-year imprisonment for the same crime and completed the execution of the sentence, etc.

However, the defendant recovered five (45 million won in total) of the 32 copies of the defaulted check initially at issue before the prosecution. After the prosecution was instituted on the remaining 27 copies of the check, the defendant recovered five (92,500,000 won in total) from among them, or submitted a written application for non-compliance with the punishment for the last holder. After the decision of the court below, one (20,000 won in total) of the defaulted check was recovered again after the decision of the court below was made, and 34 (5,70,000 won in total in total in face amount) including the one per share table 1 and 2 of the annexed crime list 1 and 2 were prosecuted, the defendant was sentenced to 10 months in imprisonment with prison labor against the non-indicted 1, who was prosecuted on the check of this case, and the defendant was divided in depth through a prison life exceeding three months in this case, considering the age, character and conduct of the defendant, the background and result of the crime in this case, the defendant's allegation that the sentencing of this case was too unjustifiable.

4. Judgment on the prosecutor's assertion

A. As to the list of units per unit Nos. 11, 13, 14, 15, 17, and 18 listed in the annexed list 2 of the crime sight table

(1) Each entry of each protocol of interrogation of Nonindicted Party 1 prepared by a judicial police officer as evidence that the Defendant conspireds with Nonindicted Party 1 to issue the said check, and each entry of the same as the statement of accusation and the copy of the number of units per party.

(2) Article 312(2) of the Criminal Procedure Act prior to the amendment (Article 312(3) of the current Criminal Procedure Act) provides not only the case where an investigative agency other than a public prosecutor uses the interrogation protocol of the accused as evidence of guilt, but also the case where an investigative agency other than the public prosecutor uses the interrogation protocol of the accused or the accused who is in co-offender relation with the accused as evidence of guilt as evidence of guilt against the accused. The interrogation protocol of the investigative agency other than the public prosecutor of the accused or the accused who has co-offender relation with the accused or co-offender relation with the accused is admitted as evidence of guilt by the suspect's court statement, even if the authenticity of the protocol is acknowledged by the suspect's court statement, the admissibility of evidence is denied if the accused denies the contents of the protocol on the trial date, and as a result, Article 314 of the Criminal Procedure Act, which exceptionally recognizes the admissibility of evidence is not applied (see Supreme Court Decision 2001Do4286, Feb. 5, 2002).

(3) If so, as long as Nonindicted 1, the original person making the original statement, acknowledged the authenticity of each protocol of suspect examination at the court of the party, but consented to the purport that the defendant and the defense counsel did not recognize the contents of each protocol of suspect examination, each of the above protocol of suspect examination cannot be admissible in accordance with the legal principles as seen earlier. In light of the fact that the above checks were issued in the name of Nonindicted 1, the representative director of the above company, it is insufficient to recognize that the defendant issued the above check in collusion with the defendant himself or with Nonindicted 1, and there is no other evidence to prove otherwise, this part of the prosecutor’s assertion is without merit.

B. As to the list of units Nos. 16, 19, 20, 22, and 24 listed in the annexed list Nos. 2

(1) The evidence that the Defendant conspired with Nonindicted Party 1 that the said check was issued is indicated in the court of the first instance on the part of Nonindicted Party 1’s statement, accusation, and copy of the check number.

(2) In light of the following, the burden of proving the facts charged in a criminal trial and the prosecutor bears the burden of proving the facts charged, and the acknowledgement of guilt must be based on the evidence with probative value sufficient to have the judge feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is no doubt as to the defendant's guilt, it shall be determined with the benefit of the defendant (see Supreme Court Decision 2001Do2823, Aug. 21, 2001, etc.).

(3) However, the following circumstances, which can be recognized by the court below and the court of first instance by lawfully investigating and using the evidence, i.e., ① Nonindicted Party 1 issued the check on the premise that with respect to the check number tickets No. 11, 13, 14, 15, 17, and 18 as indicated in the annexed Table 2, the police stated that the above check was not in itself, but the Defendant was ambiguous to have issued the check at the court. The police stated that the check number No. 16 as indicated in the same crime list was not in fact issued by the Defendant and the Defendant’s statement that the check was issued by the Defendant at the court of first instance, and that it was relatively short of consistency with the Defendant’s statement that the check was issued by the Defendant at the court of first instance. In light of the above fact that Nonindicted Party 1’s statement that the above check was issued by the Defendant’s instruction, it is difficult to view that the Defendant and the Defendant’s accomplice did not have any possibility that the above check was issued separately after the date of the above issuance.

Therefore, the evidence submitted by the prosecutor alone cannot be deemed to have been proved to the extent that there is no reasonable doubt for the defendant, and there is no other evidence to acknowledge this otherwise, the prosecutor's assertion on this part is without merit.

5. Conclusion

Therefore, since the defendant's appeal is well-grounded, the part of the judgment below's conviction is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the part of the appeal is judged as follows after pleading. Since the prosecutor's appeal is without merit, it is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act. It is so decided

The summary of the facts constituting the crime recognized by this court and the evidence related thereto are as shown in each corresponding column of the judgment of the court below, and they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 3(1), 2(2) and (1) of the Illegal Check Control Act, and Article 30 of the Criminal Act

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

[Attachment Table 1 and 2]

Judges Lee Jong-sung (Presiding Judge)