Violation of Specialized Credit Finance Business Act

The defendant shall be put on probation for one year and shall be ordered to provide community service for 80 hours.In the facts charged in this case, the defendant shall be acquitted.

The summary of the judgment of innocence shall be published.

The defendant is a person who runs a processing business, such as the contact of machinery parts, with the trade name of F at the same place as the representative director of E Co., Ltd. (hereinafter referred to as “Co., Ltd.”) located in Nam-gu Incheon Metropolitan City D at the same time.

The Defendant, when the operating funds of E are insufficient, and there was no other method to obtain a loan of operating funds, paid the F’s sales by paying more amount than the actual transaction amount with the exclusive-use card for business purchase, and received the payment from the Victim KB National Card with the F’s account, and then remitted the difference between the actual transaction amount and E to E and used it as the operational funds.

1. From July 2008 to December 2008, 12, and 30, the Defendant: (a) received an amount excluding commission from an employee in charge; and (b) received an amount 749,15,000 won in total, which is the remainder of the actual sales, from the Defendant used the Victim’s Card for the operation of the said Company, for the same period as if he paid a larger amount of money as the contact cost, the Defendant, as shown in the attached Table (1) for the same period, processed the payment with the exclusive-use card of the KB Card, and filed a claim for sales claim with the KB National Card as if he was a normal sales; and (c) received an amount excluding commission from the employee in charge; and (d) remitted the amount equivalent to KRW 796,875,600, which is the remainder of the amount excluding the actual sales, to E, and acquired the said amount from the Victim’s National Card by using it as its operation fund.

2. From January 2009 to June 30, 209, the Defendant, at the same place, obtained a total of KRW 1,069,283,000 from the victim, as shown in the attached list of crimes (2) by the same method as above, at the same time. 3. From July 2009 to December 30, 209, the Defendant acquired a total of KRW 113,793,560 from the victim as shown in the attached list of crimes (3) by the same method at the same place as above in the same manner as indicated in the attached list of crimes (3). From January 201 to June 30, 209, the Defendant, despite the fact that the Defendant actually supplied the goods to E from the same place, processed the payment under the exclusive-use card for business use to E in the name of payment, and received the total of KRW 600,000 from the victim’s credit card sales by means of pretending it as normal credit card transactions, and then transferred it to 6000.

1. Partial statement of the defendant;

1. Each investigation report;

1. A certified copy of the register, detailed statement of transactions, and detailed statement of transactions;

Application of Statutes

1. Relevant law for the crime: Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 347 (1) of the Criminal Act (generality);

1. Discretionary mitigation: Articles 53 and 55 (1) 3 of the Criminal Act;

1. Suspension of execution, probation, and community service order: Determination on the assertion of the defendant and his/her defense counsel under Articles 62(1) and 62-2 of the Criminal Act

1. Summary of the assertion

Although it is true that the defendant has received the price from the victim because he was pretended as normal transaction, the defendant had no intention to make a settlement and ability at the time, so there was no intention to commit the fraud.

2. Determination

Article 2 of the Special Agreement on the Member of the Purchase-Only Card Co., Ltd. provides that "a card can be used only at the time of purchase of goods and services from an enterprise designated separately," and according to the person in charge of the exclusive-use card for the purchase-use card of the victim, the victim may restrict discount on the false settlement through an appropriate inspection and suspend transactions that prevent the use of the next card. Therefore, if the victim knew that the transaction for which the defendant requested the settlement amount is false or the settlement amount is less than the actual amount, the victim would have not been paid the payment. The defendant, despite being aware of such circumstances, knew the victim of the fact that the service was normally provided for the financing of E which he is the representative director, thereby deceiving the victim and deceiving the settlement amount, so even if the defendant is recognized as a crime of fraud and even if he had the intent and ability to pay the payment to the defendant. The defendant and the defense counsel are not accepted.

Reasons for sentencing

[Determination of Punishment] In the area of mitigation of fraud, general fraud, type 3 (not less than KRW 500,00,000, but less than KRW 5000), the area of mitigation [limited circumstances], where the risk of damage has not been greatly realized, most of the damage recovery, serious reflectness, or no criminal record of suspension of execution was committed

【Aggravated crime for a considerable period of time】

Parts of innocence

1. Summary of the facts charged

The Defendant obtained a false or exaggerated credit card sales amount from the KB National Card using the exclusive-use card for business purchase at the time and place indicated on the facts constituting the crime in the judgment, and then, made a financing of KRW 2,639,952,160 in total to E by means of pretending the sale of goods or the provision of services or making a transaction by using the credit card in excess of the actual sales amount by remitting money to E.

2. Determination

The former Specialized Credit Financial Business Act (wholly amended by Act No. 10062, Mar. 12, 2010; hereinafter the same) provides that "credit card means a certificate issued by a credit card company, which repeatedly receives goods or services from credit card merchants or settle matters prescribed by Ordinance of the Prime Minister by presenting it (Article 2 subparagraph 3)."

However, according to the evidence examined, the instant exclusive-use card for business purchase is not issued with the actual card. It is recognized that only the card number is created to a company member, that is, a member store, a purchasing enterprise, for each selling enterprise, and a transaction and settlement is made through the card number without presenting the actual card. As seen earlier, in order to be recognized as a credit card under the former Specialized Credit Financial Business Act, the instant exclusive-use card for business purchase is required to be issued, and therefore, it is difficult to view that the instant exclusive-use card for business use constitutes a

The prosecutor asserts that the exclusive-use card for business purchase in Article 7-2 (3) 5 of the Restriction of Special Taxation Act is naturally a credit card, since the credit card or debit card issued by a credit card company under the Specialized Credit Financial Business Act in order to pay purchase price is not used by a purchasing enterprise, and it is not issued only for the purpose of paying purchase price to a purchasing enterprise selling enterprise and a credit card company, and it is issued only for the purpose of paying purchase price to the relevant purchasing enterprise. However, in light of the literal interpretation of the aforementioned provision of the Restriction of Special Taxation Act or the principle of strict interpretation of penal law, the scope of the credit card subject to punishment for violation of the former Specialized Credit Financial Business Act

Therefore, since the facts charged on the premise that the exclusive-use card for business purchase of this case constitutes a credit card under the former Specialized Credit Financial Business Act fall under a case where there is no proof of facts constituting a crime, the judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of

Judges Park Jae-ju

Judges Kim Gin-sik