(a) Whether an application for seizure and assignment order based on false bonds constitutes an attempted fraud with respect to the right to request a return of a separate deposit for the default of payment of a bill;

B. Whether an application for a simple payment order of non-performing bonds constitutes deception (negative)

A. Since a separate deposit for the default of the payment of a bill is stipulated to be returned to the depositor when a cause for return occurs, even if the non-indicted (A) conspired with the defendant to bear false debt and the right to request a separate deposit against the non-indicted (A) bank to return to the defendant, even if the nature of the claim is changed due to the whole of the claim, the risk of repayment is likely to occur, or the debtor bank's defense (in particular, a prior defense) is extinguished, it cannot be deemed that the provision of unjust enrichment is not required to the bank, unless there is any reason to view that the nature of the claim would be changed, or the debtor bank's defense

B. An application for a payment order to the effect that an immediate payment is sought without using active deceptive means, such as manipulating false evidence that the benefit of time has been lost in filing a claim for a future claim through a lawsuit does not constitute deception in order to deceive the court to acquire unjust profit.

Article 347 of the Criminal Act

Defendant

Defendant

Attorney Cho Jong-soo

Busan District Court Decision 81No331 delivered on April 8, 1982

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

The defendant's defense counsel's grounds of appeal are examined.

According to the reasoning of the judgment of the court below and the judgment of the court of first instance as cited by the court below, the court below prepared a notarial deed which issued two promissory notes with a face value of 30 million won and the face value acquired by the non-indicted 2 and executed a notarial deed which can immediately enforce execution on August 26, 1980, to prevent the payment upon presenting them to the branch of the Busan Bank's determination Dong on August 20, 1980 (the judgment of the court below is erroneous in the deposit). The defendant tried to find out the fake deposit between the non-indicted 1 and the non-indicted 2 in advance with a notary office on August 24, 1980 and did not receive any obligation from the non-indicted 1 to the non-indicted 3, a notarial deed which was issued on August 20, 1980, and the defendant did not receive the above 980-year deposit order against the above non-indicted 1 and the defendant did not receive the above 90-year deposit order from the Busan Bank.

However, according to the contents of the Busan Bills of Exchange and Promissory Notes's statement and the testimony of the witness of the court below which was bound in the record, a separate deposit for the acceptance of a bill is deposited in order to avoid a disposition of suspension of transaction by proving that the issuer does not refuse payment due to shortage of funds while submitting an accident system to the bank and the bill exchange office. The right to request the return thereof belongs to the deposit owner, i.e., if the cause of return arises, i., cancellation of the disposition of suspension of transaction or cancellation of current account transaction by separate default, and when 1 month has elapsed from the date of deposit, it can be known that there was an agreement to return the bill to the deposit owner when 3 months have elapsed from the date of deposit. Thus, even if the defendant and the non-indicted 1 did not know that the defendant had no claim against the bank, it cannot be viewed that there was any undue benefit from the above act of deception, such as fraud, which is an illegal act of the debtor bank, even if the defendant did not know that there was a false obligation to the above defendant and the above defendant's right to request for payment without any unjust benefit.

Therefore, even though the above facts acknowledged by the court below cannot be said to constitute a crime of attempted fraud, the court below imposed the defendant as a crime of attempted fraud without any particular circumstance. In this regard, the court below erred by misapprehending the legal principles on the crime of fraud, failing to exhaust all necessary deliberations, and by failing to exhaust all necessary deliberations, it is reasonable to point out that the illegality affected the judgment, that is, the judgment of the court below shall not be reversed.

Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young