The case affirming the judgment of the court below which acquitted the defendant and the last holder on the ground that it is difficult to recognize a public contest relationship with the former in committing fraud by using the so-called breabbb

[1] Article 347 (1) of the Criminal Code

Defendant

Defendant and Prosecutor

Daegu District Court Decision 2005No658 Decided June 16, 2005

Each appeal shall be dismissed.

1. As to the prosecutor's appeal

A. If the drawer of a bill or check, even though it was anticipated that the drawer would not settle the payment on the date of the bill or check, and discount or purchase goods by deceiving the other party to the transaction, the act of fraud by the issuer is completed thereby. Even if the above other party to the transaction transferred the bill or check to the other party to the transaction and the last holder presented the payment on the date of the payment, barring special circumstances such as the issuer's accomplice relation between the last holder and the electronic company of the last holder, the act of the drawer in relation to the last holder cannot be committed as fraud (see, e.g., Supreme Court Decisions 97Do3040, Feb. 10, 1998; 2005Do652, Apr. 15, 2005).

B. The court below found that the defendant had issued the so-called B/L bill in large amount under the name of the Korea Commercial Corporation in the name of Korea Commercial Corporation, Co-Defendant 1 obtained a promissory note with a discount amounting to KRW 50 million from the victim Non-indicted 2 through Non-indicted 1, who was issued by Co-Defendant 1 in the first instance court, in the name of Korea Commercial Corporation. The court below found that Co-Defendant 2 received a discount amounting to KRW 25,60 million from the Daegu Bank of Korea, which was purchased at KRW 1,000 from the non-indicted Co-Defendant 2's name after reporting the newspaper advertisement, but acquired a promissory note amounting to the discount amount from the victim Daegu Bank of Korea. However, the above victims are not the direct trading partner of the defendant, and the documents submitted by the prosecutor are insufficient to find that the defendant violated the rules of evidence, such as Co-Defendant 1 and Co-Defendant 2 of the first instance court, and there is no error in the misapprehension of the legal principles as to the defendant's fraud.

C. In addition, the court below found the Defendant not guilty of the fraud of the victim's name among the facts charged in this case against the Defendant on the ground that there is no other evidence to acknowledge the accomplice relation between the Defendant and the non-indicted 5, on the ground that the non-indicted 3 and the non-indicted 4 were in bulk issued the so-called B/C bill in the name of the Young Commercial Co., Ltd., and the Defendant received a promissory note with the face value of KRW 37.5 million from the non-indicted 4, and the non-indicted 5 delivered the above promissory note purchased in the face value of KRW 1.6 million from the non-indicted 4's name, and the non-indicted 5 was delivered with the victim's name to the large name of the company, and obtained the delayed payment of the waste disposal expenses due to delayed payment of the overdue waste disposal expenses, but it is difficult to believe the non-indicted 5's statement in the prosecutor's protocol as to the non-indicted 5's name of the defendant.

2. As to the defendant's appeal

In this case where a sentence of imprisonment for less than 10 years is imposed against the defendant, the reason that the sentence is too unreasonable cannot be a legitimate ground for appeal.

3. Therefore, each appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)