1. Summary of the facts charged

Even if the Defendant used the Samsung Credit Card issued by the Defendant Samsung Card Co., Ltd. on or around March 28, 2000, it did not have an intent or ability to pay the price. On August 3, 2001, the Defendant purchased goods equivalent to 25,752,860 won in total on 16 occasions from around that time to October 7, 2002, including that the Defendant filed an application for the card loan with the victim company and received KRW 4,00,000 from the victim company as a loan from the victim company.

2. The judgment of the court below

Based on its adopted evidence, the court below recognized the following facts: the defendant received cash services from his Samsung Credit Card Co., Ltd. on August 20, 2002 with KRW 5,00,000 (No. 15), from the legal Dong branch of Hana Bank on September 19, 2002 to use KRW 5,00,000 (No. 16 No. 5,000), and failed to pay the amount, and the defendant failed to pay the amount after receiving cash services through the cash payment machines; and the defendant reached the age of several million won at the time of receiving the said cash services, which led to the failure to pay the monthly rent of the car goods store operated at the time of receiving the said cash services. However, the court below accepted each fact that the defendant paid KRW 5,00,00 to the return of the overdue amount of the credit card to prevent the delayed payment. < Amended by Act No. 6310, Mar. 3, 20

28. As to the fact that a credit card was issued by the victim company from the time of issuance of the credit card to the victim company without any intent and ability to make payment due to the use of the card, but it is difficult to recognize it by the evidence submitted by the prosecutor alone, the prosecutor's appeal is dismissed without any reason, and the judgment of the court of first instance which acquitted the victim of the facts charged as to the 15, 16 occasions of the crime list is affirmed.

3. Judgment of the Supreme Court

However, we cannot accept the judgment of the court below for the following reasons.

A. If a credit card use contract was concluded between a credit card company and a person who was issued a card by the credit card company (hereinafter referred to as a "credit card holder") and this credit card company, the cash service under the contract is an act of being comprehensively permitted by the credit card company in advance, since the cash service under the contract is an act of being carried out by the credit card company in advance. Thus, even if non-cashs are carried out through the machine of cash payment, it is carried out based on the declaration of intention of the credit card company, and it is merely carried out by a machine that is not a person only by the method of payment.

B. Next, when a credit card member purchases goods from a credit card merchant by using the credit card, the credit card company shall pay the purchase price of the goods to the credit card member, provided that the person holding and using the credit card is a legitimate credit card member who has been issued a credit card from the credit card company, while the credit card member has monetary claims to the credit card member to grant loans for the purchase price of goods, and where the credit card member obtains cash services through an automatic cash payment, the credit card company has a cash loan relationship established and the credit card company has a credit card member's right to loans (see Supreme Court Decision 95Do2466 delivered on April 9, 196). Ultimately, the credit card member is obligated to pay the credit card company loans incurred from the credit card transaction to the credit card company. Thus, since the credit card member's monetary claim arising from the use of the credit card is premised on the premise that the credit card company member will faithfully repay the purchase price to the credit card company, it can be recognized that the credit card member has no intent to use the credit card or ability to use the loan 2080.

According to the records, it is recognized that the defendant purchased goods equivalent to 25,752,860 won in total on 16 occasions as shown in the attached list of crimes using credit cards even though he did not have the intent or ability to pay the price due to the use of credit cards to the credit card company, and received cash services. According to this, the credit card company received a sales slip from the defendant's signature sent by the member company, and then paid the purchase price of goods to the credit card company by entering the cause of the defendant's payment into the credit card company. The defendant borrowed the purchase price from the credit card company, and received the cash loan from the credit card company through the cash payment automatic (the cash loan through the automatic payment machine is merely made by a machine that is not only by the method of payment, but also by a machine that is not by this person). The series of fraud from the use of the credit card shall be comprehensively made by all the victim's deceptions through the cash payment automatic, regardless of whether it purchased goods from the member or by the act of withdrawing through the cash payment.

C. Nevertheless, the court below held that the act of using cash services as set forth in Articles 15 and 16 of the List of Offenses among the facts charged in this case does not constitute a crime of fraud. Such judgment below is erroneous in the misunderstanding of legal principles as to the elements of a crime of fraud, and it is obvious that this affected the conclusion of the judgment. Thus, the argument in the grounds of appeal pointing this out has merit.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Jeju High Court Justice Shin Shin-chul

Justices Kim Young-young