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The prosecutor's appeal is dismissed.
Reasons
1. The offense of violation of Article 2 (2) of the Control of Illegal Check Control Act is established at the time of issuance of a check, not at the time of refusal of payment, and the offense under Article 2 (2) of the Control of Illegal Check Control Act in the event that a check is presented for payment after preservative measures under the Company Reorganization Act have been taken on the grounds as stated in the judgment of the court below can promote moral hazard, such as abuse of company reorganization procedure for the purpose of avoiding the Illegal Check Control Act, and thus, undermining the foundation of the check system. In light of the above, in a case where a check is issued at the time of presentment of payment, even if a check is presented after preservative measures under the Company Reorganization Act, if it is anticipated that the refusal of payment will be made at the time of presentment of payment, the offense of violation of Article 2 (2) of the above Act shall be established even if it
2. Determination
A. On May 24, 1989, the summary of the facts charged was that the Defendant entered into a check of shares in the name of the branch office of the Suwon Bank and the Defendant, a representative director, and entered into a check of shares in the name of the company B and traded the shares of the Defendant.
On October 19, 2012, the Defendant issued one check number “D”, “105,712,750 won”, and “19 January 19, 2013” in the name of the said B Company.
However, on December 10, 2012, the check holder presented payment to the above bank on December 10, 2012, which was within the time limit for presentment for payment, but did not receive any shortage of deposit.
B. The lower court determined as follows: (a) in a case where the court rendered a preservative measure prohibiting repayment, etc. to the debtor pursuant to Article 43(1) of the Debtor Rehabilitation and Bankruptcy Act, the payment bank of a check on a check, the payment of which is prohibited accordingly, must reject the payment on the ground of the above preservative measure, regardless of whether the check was deposited.