Today, check plays very important role in current economy and economy system. Because check as an alternative of money not only is circulated in large, but also has much influence on distributive order as a vein activating and flourishing society and economy.
Allegedly, circulation of the check is largerly depend on the trust in capital society. For example, when the originator issues his or her payment instruction by check, it is common practice for the bank of beneficiary, that is the payee, to enter a provisional credit in the beneficiary’s account as soon as he or she pays in the check to his or her bank. Thus it is necessary for modern society to protect the function of check in many way, especially as law and institution does.
A debtor’s delivery of a check to the creditor can itself be a payment of the debt but it is presumed that parties intend the payment only to be conditional. If the check is not honored then the originator’s liability to pay the debt remains. But even where the presumption is displaced and the creditor intend to accept the instrument as an unconditional discharge of the debt, his or her possession of it cannot create, let alone complete, any title to the proceeds of the check which should eventually be credited to his or her account. To assume otherwise would confuse the status of the check and its monet proceeds in his or her account.
The problem here in “The Regulation of Illegal Check Act” is that it imposes punishment on those who draw a illegal check not only with purpose but also with negligence, which is against modern criminal legal principle that he who commits a crime on purpose should be penalized in general and with negligence not be punished exceptionally.
That’s why “The Regulation of Illegal Check Act” has been dealt with whether it is violation of the constitution or not by the Constitutional Court. Though the Constitutional Court has decided on the constitutionality of the act in both 2000 and 2011, the Court ruled the same decision that the act is constitutional.
As we can find from the decision, there are some conflicts between the necessity to protect transaction and economy system through keeping its circulation and trust secure and the principle of legality such as the principle of self-responsibility and autonomy.
This study tries to show the law ought to be in position which can make dialectical development of both sides. Therefore economy system desperately needs demonstration of regulations and deregulations, derived from of its own nature. In one hand, it needs deregulation for self-responsibility and autonomy because of its nature of legal principle. In the other hand, however, it needs appropriate regulations to protect society and economy.