The case holding that the judgment of the court below which rejected the charge of violation of the Illegal Check Control Act on the premise that the holder of the remaining check believed the contents of the agreement receipt prepared by the intermediary endorsement without investigating who is the holder of the check, expressed his intention not to be punished before the prosecution, and that there was an error of incomplete deliberation or mistake of facts in the judgment of the court below which rejected the prosecution.

The case holding that the judgment of the court below which sentenced the dismissal of prosecution on the charges of violating the Illegal Check Control Act on the premise of the fact that the holder of the remaining check believed that the contents of the agreement receipt, such as "not raising a civil or criminal objection" of the interim endorsement's preparation, without examining who is the holder of the check and inquiring about whether the contents of the agreement receipt are consistent with the truth, expressed his/her intention not to be punished against the defendant before the prosecution, and that there is an error of law that affected the conclusion of the judgment by misunderstanding the fact that the court below failed to exhaust all the deliberation or

Article 2(4) of the Illegal Check Control Act, Articles 307 and 308 of the Criminal Procedure Act

A

A co-inspector;

Seoul District Court Decision 95No1929 delivered on June 9, 1995

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

As to the Grounds of Appeal

1. According to the reasoning of the judgment below, the court below reversed the judgment of the court of first instance which found the defendant guilty on the grounds that the person who issued or prepared a check number in Article 2 (2) and (3) of the Illegal Check Control Act does not collect or collect the check number, and the defendant cannot be prosecuted against the intention of the holder of the check even if the person who did not collect or collect the check number, among the facts charged in this case, the check number B 15 million won per share and the check number C 13.5 million won per share, and the check number 13.5 million won per share, among the facts charged in this case. According to the records, the court below found the fact that the holder of the above Chapter II of the above check number 2 expressed his intention not to be punished against the defendant prior to the prosecution of this case, since the violation of the Illegal Check Control Act against the above check number 10 million won per share constitutes a case where the indictment procedure becomes null and void in violation of the law, and dismissed the prosecution against this part of Article 327 subparagraph 2 of the Criminal Procedure Act.

2. In light of the above trial records and investigation records cited by the court below, D is bound with ‘A' receipt in the name of Dong-person prepared by the court below on April 27, 1994, and its contents are as follows: "D is paid in full the face value of the above check by the defendant, but it cannot be returned because it was lost the original check due to his mistake," and it does not raise a civil or criminal objection after prosecution." Thus, the court below held that the contents of the above agreement receipt are reliable, and it is clear that the court below confirmed the fact that it expressed its intention not to be punished against the defendant prior to the prosecution of this case on the premise that the last holder of the above statement of unit number was D.

However, according to the statement of accusation and copy of check (No. 4, 32 through 35 pages) bound in investigation records, the check number B per 15 million won per check face value is deposited into the bank account unit in the Sungnam branch of G via D through D, and after endorsement and transfer in the order of E and F, the check number C per 13.5 million won per check value is transferred in the order of D and E, and all of the checks were deposited into the bank account unit in the Ha branch of the Gyeonggi Bank branch of H due to endorsement and transfer in the order of D and E, and the fact that H was refused to pay at the deposit account book at the Ha branch of the Gyeonggi Bank. According to the E's statement compiled in the records and the copy of the check number attached thereto, the check number, which is one of the endorsers, has been collected from each of the endorsers, and the check number per 1,500,000 won per face value per 1,505,000 won per check.

In light of the above circumstances, the holder of the instant check is called E unless there is a special reason to the contrary, so it is difficult to view that the contents of the instant check receipt under the premise that the final holder of the said check is D is credibility.

Ultimately, the court below determined that the holder of the above statement of the agreement receipt was able to know whether the contents of the above agreement receipt are consistent with the truth if he/she had investigated whether the holder of the check was the holder of the check and summoned E and other endorsers as a witness (the copy of the check contains telephone numbers of endorsers E, etc.) after a thorough examination of the entries of the bill of accusation and copy of the check bound in the investigation records, and that the holder of the above statement of the agreement receipt believed that he/she had expressed his/her intention of not wanting to be punished against the defendant before the prosecution of this case. On this premise, the court below sentenced the judgment dismissing the prosecution against the violation of the Illegal Check Control Act against the above check, which affected the conclusion of the judgment by misunderstanding that the court below failed to exhaust all necessary deliberations or believed the fact that the above statement of agreement receipt was not reliable, and there is a ground for this point

3. The prosecutor filed an appeal against the guilty portion of the judgment below, but the appellate brief did not state the grounds therefor in the petition of appeal and did not submit the appellate brief within the lawful period. Therefore, this part of the appeal is without merit.

4. Therefore, among the judgment below, the part of the violation of the Illegal Check Control Act regarding the above checks cannot be reversed. Since the above crime and the remaining crime are concurrent crimes under the former part of Article 37 of the Criminal Act and one punishment should be imposed together, the judgment of the court below shall be reversed in its entirety, and the case shall be 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 Kim Jong-sik (Presiding Justice)