[1] Whether the latter part of Article 2(1) of the former Short-Term Finance Business Act is unconstitutional (negative)

[2] Effective requirements for the maturity of a bill under the delegation of the latter part of Article 2(1) of the former Short-Term Finance Business Act (=Public notice or notification by public notice)

[3] In a case where a check or a bill is discounted without conviction that it would not be settled on the date of payment, whether fraud is established (affirmative)

[4] The amount of financial gains acquired by the defendant in fraud by discount of a bill or check (=amount of cash actually received)

[5] Whether the existing obligation is extinguished where promissory notes or shares per unit are issued as repayment of the existing obligation (negative)

[6] Whether it constitutes a property interest for which performance of obligation is postponed in a crime of fraud (affirmative), and whether the amount of such interest can be calculated (negative)

[1] Whether the maturity of a bill subject to a short-term financial business should be set freely and flexibly according to the economic situation at that time. Thus, Article 2 (1) of the former Short-term Financial Business Act (repealed by Article 2 of the Addenda to the Merchant Banks Act, Act No. 5503 of Jan. 13, 1998) provides for the maturity of a bill within one year, and it cannot be deemed that delegation by the Minister of Finance and Economy, who is the competent Minister, can be determined promptly and appropriately without the form of Ministerial Ordinance.

[2] In full view of the provisions of Articles 2(1), 3(1), and 23(1) of the former Short-Term Finance Business Act (repealed by Article 2 of the Addenda to the Merchant Banks Act, Act No. 503 of Jan. 13, 1998), the maturity of a bill as determined by the Minister of Finance and Economy is determined by delegation of the latter part of Article 2(1) of the same Act. Thus, insofar as the contents of the above Act are supplemented in substance and it does not go beyond the bounds of delegation of the above Act, it shall be deemed that it has the nature of an external binding legal order in combination with the above Act. This shall take effect in the form of a public notice document (e.g., document informing the general public of certain matters) among the types of public documents under Article 7 of the Administrative Management Regulations (Presidential Decree No. 1390), and even if the Minister of Finance and Economy did not set the maturity of a bill or set it, it shall not be subject to criminal punishment without the authorization of the general public.

[3] A crime of fraud is established if a check or a bill is discounted without notifying the addressee of the fact that the check or the bill will not be settled on the date of payment, or there is no conviction that the check or the bill may be paid on the date of payment.

[4] In a crime of fraud by discount of a bill or check, where the amount of cash received by the defendant is less than the face value of a bill or check issued by the defendant, the amount of financial gains acquired by the defendant shall be deemed the amount of cash actually received by the party after deducting advance interest and expenses, but the sum of advance interest and expenses shall be deemed the principal of the loan, and it shall be deemed the amount of cash received by the defendant, not the face value of the bill or check, except where the party actually received cash after deducting advance interest and expenses.

[5] In case where promissory notes or units per unit are delivered as the repayment of existing obligations, unless the parties make a special agreement to extinguish existing obligations, the existing obligations are extinguished only by the above delivery, and the existing obligations are extinguished only by the time when the said promissory notes or units per unit are settled.

[6] Since it is also an economic interest in receiving a promissory note or a unit of shares, a crime of fraud for which the performance of obligation is postponed can be established, but since the amount of property interest by which the performance of obligation is postponed cannot be calculated, it shall not be added in calculating the amount of profit under Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes.

[1] Articles 13(1), 75, and 95 of the Constitution of the Republic of Korea; Article 2(1) of the former Short-Term Finance Business Act (repealed by Article 2 of the Addenda to the Merchant Banks Act, Act No. 5503 of Jan. 13, 1998) / [2] Articles 2(1), 3(1), and 23(1), and 23(1), Article 7, and 8 of the former Short-Term Finance Business Act (repealed by Article 2 of the Addenda to the Merchant Banks Act, Act No. 5503 of Jan. 13, 1998); Article 347 of the Criminal Act / [3] Article 347 of the Criminal Act / [5] Article 347 of the Criminal Act / [6] Article 347 of the Criminal Act; Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[6] Supreme Court Decision 97Do1095 delivered on July 25, 1997 (Gong1997Ha, 2758) / [3] Supreme Court Decision 93Do1408 delivered on July 27, 1993 (Gong1993Ha, 2478), Supreme Court Decision 97Do1095 delivered on July 25, 1997 (Gong1997Ha, 2758), Supreme Court Decision 97Do2609 delivered on December 26, 197 (Gong1998Sang, 475) / [4] Supreme Court en banc Decision 91Da43848 delivered on June 23, 199 (Gong192, 2945) 97Da196498 delivered on June 29, 197 (Gong197Da196598 delivered on June 29, 195)

Defendant 1 and two others

Defendants

Attorney Rent-seop et al.

Daegu High Court Decision 98No285, 302, 330 delivered on September 14, 1998

The part of the judgment of the court below against Defendant 1 and Article 1 shall be reversed, and that part shall be remanded to the Daegu High Court. The appeal against Defendant Park dance shall be dismissed.

Defendant 1, 2 and his defense counsel's grounds of appeal (if the supplemental appellate brief is not timely, it is limited to the extent of supplement in case of the grounds of appeal).

1. As to the violation of the Short-Term Finance Business Act by Defendant 1 and 2

Article 2 (1) of the Short-Term Finance Business Act (amended on December 31, 1993 and enforced on January 1, 1994) provides that "short-term finance business" means a business that issues, discount, trade, brokerage, acceptance, and guarantee of bills and other debt certificates as prescribed by the Ordinance of the Ministry of Finance and Economy (hereinafter "debt certificates") (hereinafter "debt certificates"). In this case, the scope of bills and debt certificates shall be within one year and shall expire within the period as determined by the Ordinance of the Ministry of Finance and Economy. Since the maturity of bills and debt certificates needs to be determined in a timely and flexible manner according to the economic situation at that time, it may not be determined in accordance with the Constitution of the Ministry of Finance and Economy in a more timely manner than the delegation of the above bill under the Act.

However, in full view of the provisions of Article 2(1) of the above Act and Article 3(1) of the above Act provide that short-term financing business shall not be operated without the approval of the Minister of Finance and Economy except as otherwise provided for in other Acts, and Article 23(1) of the above Act provides criminal punishment for those violating this Act, the maturity of which is determined by the Minister of Finance and Economy pursuant to delegation of the latter part of Article 2(1) of the above Act is determined by the delegation of the above Act. In substance, unless it has the function to supplement the contents of the above Act and does not go beyond the limit of delegation of the above Act, it shall be deemed that it has the nature of any legal order externally binding in combination with the above Act, and this shall take effect in the form of public notice documents (e.g., public notice and public notice) among the types of public documents of Article 7 of the Business Management Regulations (amended by Presidential Decree No. 13390).

Therefore, even if the Minister of Finance and Economy did not set the maturity of a bill which is the object of a short-term financial business or set it, it shall not be subject to criminal punishment on the ground that it operated a short-term financial business without the approval of the Minister of Finance and Economy, unless the said bill is publicly notified or announced to the general public. The court below decided that Defendant 1 and 2 was guilty of violating the Short-term Financial Business Act without examining whether the maturity of the bill was set by the Minister of Finance and Economy, and whether the maturity was publicly notified or publicly announced to the general public. Accordingly, the court below erred by misapprehending the legal principles of the Short-term Financial Business Act, which affected the conclusion of the judgment.

2. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Habitual Fraud) by Defendant 1 and 2

A. As to the intent of fraud and deception of the victim

Even though there is no conviction that a check or a bill will not be settled at the due date, or that it may be paid at the due date, a crime of fraud is established when a discount is obtained without notifying the addressee of such content (see Supreme Court Decision 97Do1095, Jul. 25, 1997). According to the records, even though there is no conviction that the check or a bill in the decision of the court below would not be settled at the due date, Defendant 1 and 2, in collusion, may recognize the fact of discount by deceiving the check or the bill without notifying the addressee of such content, and thus, it can be acknowledged that the above Defendants' fraud and the fact of deceiving the victim is established. The argument in the grounds of appeal on this point is without merit.

(b) On the amount of profit when a bill or check is discounted;

In fraud by discounting bills and checks as above, if the amount of cash received by the defendant from the victim is less than the face value of the bills and checks issued by the defendant, the amount of financial gains that the defendant acquired is not the face value of the bills and checks issued by the defendant, but the cash amount received by the defendant (excluding the case where the parties actually receive only cash amount after deducting the interest and expenses, but make a loan for consumption with the agreed interest and expenses set forth in the lending rate).

In light of the record, among the facts charged in the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Habitual Fraud), there are cases where it is clear that the cash amount received by Defendant 1 and 2 is less than the face value of the bill or check issued by Defendant 1 and 2, and there is a case where the related person who made a discount of the bill or check shows that there is a possibility that the cash amount received by Defendant 1 and 2 is less than the face value of the bill or check issued by Defendant 1 and 2. However, the court below held that Defendant 1 and 2 received cash amount equivalent to the face value of the bill or check in question, and acquired it by fraud. In this part, there is an error of law that affected the conclusion of the judgment due to insufficient deliberation or misunderstanding of legal principles as to the amount of profit in fraud, and the argument in

C. Whether fraud is established in case of delivery of promissory notes or units as payment of existing debts, and the amount of profit

According to the reasoning of the judgment below, although Defendant 1 and 2 did not have an intention or ability to make a settlement normally on the date of payment even after issuing a promissory note or a check of shares in the name of the floating company, the court below held that each of the parties was granted the payment of the existing debt to the victim as if each of the promissory note or the check of shares would be paid normally, and that each of them would have acquired property profits equivalent to the corresponding amount

However, in the event that promissory notes or units are delivered as the repayment of the existing debt, unless the parties make a special agreement to extinguish the existing debt, the existing debt is not extinguished by the said delivery, and the existing debt is extinguished only when the said promissory notes or units per unit are settled. In this case, even if the records are examined, it is not deemed that the parties made a special agreement to extinguish the existing debt only by the delivery of the said promissory notes or units per unit, it is unlawful for the court below to hold that Defendant 1 and 2 discharge the existing debt only by the delivery of the said promissory notes or units per unit.

However, by giving and receiving the above promissory note or the check of the number of units, Defendant 1 and Defendant 2 are deemed to have been postponed the performance of obligation until the due date, and it is also an interest in property (see Supreme Court Decision 97Do1095, Jul. 25, 1997). Thus, even in this case, the crime of fraud for which the performance of obligation has been postponed can be established, but the amount of property interest by which the performance of obligation has been postponed cannot be calculated, and it is not to be added to the amount of profit in calculating the amount of profit under Article 3 (1) 2 of the Act on the Aggravated Punishment

D. Therefore, the court below should have examined whether the amount of cash actually acquired at a discount of the bill or check is the amount of profit, and if the court below exempted the existing obligation by the delivery of the above promissory note or the check per unit, the amount of profit should be excluded from the sum of the amount of profit, and the amount of profit by fraud of the defendant 1 and 2 should be an amount of 50 million won under Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, although it should have examined whether the amount of profit by fraud becomes an amount of 50 million won under Article 3 (1) 2 of the same Act

3. As to the defendant 1 and 2's other facts constituting the crime

Examining the evidence admitted by the court of first instance by the court below after comparing the records and records, it is just in the court below's decision that Defendant 1 and 2 committed each crime other than the above 1 and 2, and there is no violation of law by incomplete deliberation or mistake of facts due to violation of the rules of evidence as alleged in the grounds of appeal (it does not affect the conclusion of the judgment of the court of first instance that Defendant 2 violated the Act on the Control of Specific Economic Crimes, etc. of Specific Economic Crimes (14) and the crime of fraud in Article 13 of the List of Crimes of the court of first instance (14) which was accepted by the court of first instance. Thus, all of the defendants guilty cannot be deemed to be a violation of the rules of evidence, and the purport of the conflict in the judgment of the court of first instance is the degree that they committed a violation of the rules of evidence, and it is nothing more than the exemption of legal liability, and it does not affect the postponement of payment because they were given a sign predicted by the court of first instance, which constitutes a violation of the Act on the Control of Specific Check.)

The ground of appeal on this point is without merit.

4. As to Defendant 3

Defendant 3 did not submit an appellate brief within a lawful period of time.

5. Therefore, the part of the judgment of the court below against Defendant 1 and 2 concerning Defendant 1 and 2 among the charges recognized by the court below as concurrent crimes shall be reversed, and the part concerning Defendant 1 and 2 shall be remanded to the court below for further proceedings consistent with this Opinion. The appeal by Defendant 3 shall be dismissed and it is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)