부도수표에 대한 법적 규제 검토 - 부정수표단속법을 중심으로 - (A Review on Bad Check Laws - Focusing on the Bad Check Control Act in Korea -)

서지정보

· 발행기관 : 한국경찰법학회
· 수록지 정보 : 경찰법연구 / 6권 / 2호 / 290 ~ 318페이지
· 저자명 : 윤성승

초록

Under the Bad Check Control Act in Korea, if payment of a validly issued check was refused by the drawee for lack of funds, the issuer is penalized by the criminal penalties. While there is no criminal penalties for issuing bad drafts, issuing bad checks are penalized to guaranty the
payment of checks. However, criminal penalties for the bad checks has been criticised that it is too harsh when they are imposed to the negligent violators. Because of the possibility of criminal penalties, it is also criticised that it can adversely affect the business activities for the
issuers. Moreover, more than 90% violations of the Bad Check Control Act were related to payment refusals for insufficient funds. In 1995, more than 100,000 violations of the Bad Check Control Act were booked. In 2001, the Constitutional Court of Korea decided that the Article 2,
Section 2 of the Bad Check Control Act, which imposes criminal penalties to issuing bad checks, is not unconstitutional. However, the court also recognized current Article 2, Section 2 of the Act had some problems to be improved but it was too early to abolish all the relevant
Article. There was also a strong dissenting opinion in that decision by a Justice of the Court. Compared the regulations on issuing bad checks among New York, California, Delaware, and the Korean Bad Control Act and decisions, post-dated check and checks issued for security purpose must be excluded from criminal penalties since issuers of those checks do not have intent to fraud. If there is no intent to fraud the relevant parties, it is desirable that criminal penalties must not be imposed to such bad check cases by limiting the meaning of the clauses or by the amendment of the clauses of current act. Since it is very difficult to predict the exact scope of negligence when punishing bad checks and it is also questionable to the necessity and the reasonableness to punish issuing bad checks by negligence, negligently issuing bad checks must be excluded from the criminal penalties. Moreover, current maximum statutory penalties under the Bad Check Control Act are too severe compared to U.S. bad check laws and even the courts in Korea impose actual penalties practically far less than maximum statutory penalties. Thus it is desirable to reduce the maximum statutory penalties in the Bad Check Control Act.

영어초록

Under the Bad Check Control Act in Korea, if payment of a validly issued check was refused by the drawee for lack of funds, the issuer is penalized by the criminal penalties. While there is no criminal penalties for issuing bad drafts, issuing bad checks are penalized to guaranty the
payment of checks. However, criminal penalties for the bad checks has been criticised that it is too harsh when they are imposed to the negligent violators. Because of the possibility of criminal penalties, it is also criticised that it can adversely affect the business activities for the
issuers. Moreover, more than 90% violations of the Bad Check Control Act were related to payment refusals for insufficient funds. In 1995, more than 100,000 violations of the Bad Check Control Act were booked. In 2001, the Constitutional Court of Korea decided that the Article 2,
Section 2 of the Bad Check Control Act, which imposes criminal penalties to issuing bad checks, is not unconstitutional. However, the court also recognized current Article 2, Section 2 of the Act had some problems to be improved but it was too early to abolish all the relevant
Article. There was also a strong dissenting opinion in that decision by a Justice of the Court. Compared the regulations on issuing bad checks among New York, California, Delaware, and the Korean Bad Control Act and decisions, post-dated check and checks issued for security purpose must be excluded from criminal penalties since issuers of those checks do not have intent to fraud. If there is no intent to fraud the relevant parties, it is desirable that criminal penalties must not be imposed to such bad check cases by limiting the meaning of the clauses or by the amendment of the clauses of current act. Since it is very difficult to predict the exact scope of negligence when punishing bad checks and it is also questionable to the necessity and the reasonableness to punish issuing bad checks by negligence, negligently issuing bad checks must be excluded from the criminal penalties. Moreover, current maximum statutory penalties under the Bad Check Control Act are too severe compared to U.S. bad check laws and even the courts in Korea impose actual penalties practically far less than maximum statutory penalties. Thus it is desirable to reduce the maximum statutory penalties in the Bad Check Control Act.

참고자료

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