[1] In a case where a check which was presented for payment by stating the date on which the check was issued on 6 November 106 was rejected, whether it constitutes a violation of Article 2 (2) of the Illegal Check Control Act (negative)

[2] The meaning of the holder of a check under Article 2 (4) of the Illegal Check Control Act, which can express his intention not to punish him

[1] In light of the language, securities, and circulation securities of a check, the presentation of payment made on the 6th day of November, 106 cannot be deemed a lawful presentation of payment. Thus, the check cannot be deemed a lawful presentation of payment. Thus, even if the check was refused to pay without transaction, the drawer cannot be punished as a violation of Article 2 (2) of the Illegal Check Control Act.

[2] In a violation of Article 2 (2) of the Illegal Check Control Act, if the holder of the check in question expresses his intention not to be punished by the drawer before the pronouncement of the first instance judgment, the rejection of the prosecution shall be dismissed. The holder who can express his intention not to punish him refers to the holder at the time of the presentation of such intention and falls under the ordinary presentation of payment. However, not only the person who actually holds the check in question after the refusal of payment but also the person who actually holds the check after the refusal of payment.

[1] Article 2 (2) of the Illegal Check Control Act / [2] Article 2 (4) of the Illegal Check Control Act

[2] Supreme Court Decision 95Do1836 delivered on November 28, 1995 (Gong1996Sang, 306)

Defendant

Defendant

Attorney Soh Dong-ri

Daegu District Court Decision 98No1821 delivered on August 27, 1998

The conviction part of the judgment below is reversed, and that part of the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. On the first ground for appeal

On June 15, 1996, the court below issued a check number No. 4 in the annexed table No. 5 of the judgment of the court below (the check number Ma 04102724, the date of issuance, No. 6, Nov. 6, 1997; par value 200,000,000) and presented a payment proposal to the South-dong branch of the National Bank of Korea, the place of payment for which the holder made a payment proposal, but did not receive the payment as a transaction, and recognized that the defendant was punished by applying Article 2 (2) of the Illegal Check Control Act to the defendant.

However, according to the records, Non-Indicted 2 was issued by the defendant with a check with blank as the issue date, and presented it to the Non-Indicted 1 of the counter staff without filling the issue date on November 6, 1997 at the point south-dong branch of the National Bank of Korea, which is the place of payment, and the issue date cannot be set up again as the 6th of October in 197, and the above Kim Jong-Un again presented the check as the 16th of October in 197. The above 16th of October in the above 197, which added the 9th of October in the above 16th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 19th of the 19th of the 196th of the 10.

In light of the language, securities, and circulation securities of the check at issue in this case, the check shall not be deemed to be a legitimate date of issue when it is presented. Thus, even if the check at issue was rejected on the above ground as above, it shall not be deemed to be a lawful date of issue. Thus, even if it was rejected on the above ground, it shall not be punished as a violation of Article 2 (2) of the Illegal Check Control Act.

Therefore, the court below's decision that found the defendant guilty on a different premise is erroneous in the misapprehension of legal principles as to Article 2 (2) of the Illegal Check Control Act, which affected the judgment.

The ground of appeal disputing this point is with merit.

2. On the second ground for appeal

In the case of the violation of Article 2 (2) of the Illegal Check Control Act, if the holder of the check in question, prior to the pronouncement of the first instance judgment, expresses his intention that he would not want the punishment of the drawer, the dismissal of the prosecution shall be dismissed. The holder who can express such intention, refers to the holder at the time of the presentation of the intention, and the person who has presented the ordinary payment, shall be deemed to fall under this. However, the person who has received the check in question after the refusal of payment and actually holds it, and the person who actually holds it after receiving it from the holder at the time of the refusal of payment, shall be deemed to fall under this.

According to the records, the attached table No. 2 of the judgment of the court below (the check number Ma 041022, Oct. 30, 1995, par value 10,000) was refused to pay for the non-indicted Kim Construction, and the check number No. 3 of the same sight table (the check number Ma 0837955, Nov. 7, 1995; par value 5,000,000) was refused to pay for the non-indicted 1's check number 2, which was before the judgment of the court of first instance. Thus, since the non-indicted 1's most yellow crime was the holder before the judgment of the court of first instance, the court below should have declared that the non-indicted 1 was the holder of the above check, who was subject to the above punishment of the non-indicted 28,000, which was submitted to the court of first instance, and thus, it can be seen that the above non-indicted 28,000.

Nevertheless, the court below found the defendant guilty of violating the Illegal Check Control Act without conducting any deliberation on this point. Thus, the court below erred by misapprehending the legal principles on Article 2 (4) of the same Act and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

The ground of appeal pointing out this point is with merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below's conviction Nos. 2, 3, and 4 concerning the violation of the Illegal Check Control Act cannot be maintained as seen above. Since the judgment of the court below takes the above violation of the Illegal Check Control Act and the remaining violation of the Illegal Check Control Act as concurrent crimes, one punishment is imposed. Thus, the part of the judgment below's conviction among the judgment below is reversed and remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)