[사기미수 ][하집1996-1, 552]
Whether acquiring credit information by deceiving credit card holders for the purpose of purchasing goods, receiving cash services, etc. by copying the credit card constitutes an attempted fraud (negative)
In order to be established a crime of fraud, it is necessary to mislead another person to cause mistake and to acquire property or property gains by inducing another person to deliver property or make other property disposal act based on such mistake. The act of obtaining credit information by deceiving the credit card holders cannot be deemed as property or property gains which are objects of fraud. Furthermore, even if the defendant obtained the victims' credit information and copied the fake credit card, and then received goods, cash services, etc. using it, it does not show that the credit card holders have to deliver any property or property disposal act. Accordingly, the defendant's acquisition of such credit information does not lead to the preparatory act of fraud unless it leads to the act of purchasing specific goods, receiving cash services, etc. by deceiving the quantity distributor, which is a normal card.
Articles 347(1) and 352 of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995)
Defendant
Defendant
Attorney Jeong Ma-chul
Seoul District Court Decision 95Mo2924 delivered on October 25, 1995
Supreme Court Decision 96Do490 Delivered on April 9, 1996
The judgment of the court below is reversed.
The defendant shall be innocent.
1. Summary of grounds for appeal;
The gist of the grounds for appeal by the Defendant and his defense counsel in this case is that the Defendant committed an unlawful act that affected the conclusion of the judgment by falsely recognizing the fact that the Defendant committed a crime in the name of the credit card holder by copying the credit card, although the Defendant did not have any criminal intent to purchase the goods in the name of the credit card, the lower court erred by misapprehending the legal principles as to fraud and thereby adversely affected the conclusion of the judgment, although it cannot be deemed that the Defendant’s act in this case constitutes the preparation for fraud, but the Defendant’s act does not constitute the preparation for fraud, thereby having committed an unlawful act, which affected the conclusion of the judgment. Thirdly, the lower court erred by misapprehending the legal principles as to fraud, and the third, the sentence of the lower court is too unreasonable.
2. Summary of the facts charged
The gist of the facts charged of this case is that the defendant had been engaged in the above-mentioned card manufacturing business, and he/she had a password of the above 7th anniversary of the above 194, by asking the victim's 1's credit card number from the above 7th day to the above 7th day of the time of the examination of the Hong Kong, and by using the card 2's magnetic information which is contained in the 5th day of the above 4th day of the purchase of the above 3th day of the 4th day of the 3th day of the 1st day of the 5th day of the 5th day of the 5th day of the 1st day of the 1st day of the 1st day of the 5th day of the 1st day of the 1st day of the 5th day of the 1st day of the 1st day of the 5th day of the 1st day of the 1st day of the 1st day of the 1st day of the 20th day of the 1st day of the 20th day of the month.
3. Judgment of party members
In full view of the evidence duly admitted by the court below after examining the evidence, it is acknowledged that the defendant conspired with the above non-indicted 1 to obtain another's credit card information and copied the credit card information, and then attempted to obtain goods, services, etc. using such credit card, and the appeal No. 1 does not have merit. Meanwhile, in order to establish fraud, the appeal No. 1 does not have merit. Meanwhile, it is required that the defendant's act of obtaining credit information by deceiving the victims shall not be considered as property or property profit which is the object of fraud, and it shall not be deemed that the credit information, etc. is the act of obtaining property or property profit, and even if the defendant obtained a fake credit card from the victims and then received goods, cash services, etc. by the defendant's act as above (the victim or the person who acts as a distributor of the pertinent goods or a provider of the pertinent property, etc.).
Therefore, as long as the act of obtaining the above credit information by the defendant does not proceed to the act of deceiving the quantity distributor of the goods that are normal cards and purchasing specific goods and receiving cash services, it is difficult to view that the act of obtaining the above credit card by copying and completing the above credit card does not constitute the preliminary act of fraud (the attempted act of receiving the credit card is not subject to punishment under the Credit Card Business Act), and even if based on the whole evidence submitted by the prosecutor, there is no evidence to support that the defendant commenced the act of purchasing specific goods by reproducing the credit card and receiving cash services.
Ultimately, the court below erred by misapprehending the legal principles on fraud, which affected the conclusion of the judgment, and the appeal pointing this out has merit. Therefore, without considering the remaining grounds for appeal of the defendant, the party members are reversed the judgment below and decided as follows through pleading in accordance with Article 364(6) of the Criminal Procedure Act.
The summary of the facts charged in this case is as seen above, and as such, it falls under the case where there is no proof of facts constituting the crime, and thus, it is not guilty under the latter part of Article 325 of the Criminal Procedure Act.
It is so decided as per Disposition for the above reasons.
Judges Ohovah (Presiding Judge)