[신용카드업법위반등 ][하집1998-2, 729]
The number of offenses of violation of Article 70 (2) 3 of the Specialized Credit Financial Business Act, where credit card sales slips are issued and funds are financed on several occasions;
Article 70 (2) 3 of the Specialized Credit Financial Business Act prohibits the act of issuing credit card sales slips and providing financing by pretending to sell goods, and punishing the act of violation is ultimately to maintain a sound order in credit transactions and to protect the interests of the credit card company's property interests incidental thereto. Therefore, it cannot be said that a single crime is established for each violation, and at least a separate crime is established for each credit card company.
Article 70 (2) 3 of the Specialized Credit Finance Business Act, Article 25 (2) 4 of the former Credit Card Business Act (repealed by Article 2 of the Addenda of the Specialized Credit Finance Business Act)
[Plaintiff-Appellant] Plaintiff 1 and 2 others (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)
Defendant
Prosecutor
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
The forty-one day of detention days prior to the pronouncement of the judgment below shall be included in the above sentence.
except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.
1. The gist of the grounds for appeal asserted by the prosecutor is that a crime of violation of Article 25 (2) 4 of the former Credit Card Business Act or Article 70 (2) 3 of the current Specialized Credit Financial Business Act, which provides sales slips and provides money by pretending to purchase goods, is established separately for each act, or at least one separate crime is established for each credit card company, and each act constitutes concurrent crimes under the former part of Article 37 of the Criminal Act. Nevertheless, the court below erred by misapprehending the legal principles as to the number of crimes under the above crime, which affected the conclusion of the judgment.
2. Therefore, during the period from September 24, 1997 to February 17, 1998, the court below held that the defendant provided a false sales slip and provided a loan of KRW 103,520,238 to persons who wish to borrow cash by credit card 104 times as stated in its reasoning, for a single and continuous criminal offense, on the grounds that the defendant's act repeats the same kind of crime for a certain period under the single and continuous criminal intent and is also identical with the legal interest on the damage.
3. In a case where a single and continuous criminal committed the same kind of crime repeatedly for the same or similar period under the same or similar criminal intent and the legal benefits from such damage are the same, each of the crimes shall be deemed an inclusive crime (see Supreme Court Decision 96Do1181 delivered on July 12, 1996), therefore, the judgment of the court below on this point is justified.
However, the Specialized Credit Financial Business Act (amended on January 1, 1998) aims at promoting the financial convenience of the people and contributing to the development of the national economy by supporting sound and creative development of operators of credit card business (Article 1). For this purpose, a credit card company provides for permission for business, and provides various penal provisions which punishs those who refuse to use credit cards, those who pretend to sell goods or provide services, and those who prepare sales slips and provide funds in excess of actual sales amount (Article 70(1) through (4) of the former Specialized Credit Financial Business Act). In full view of these provisions, it can be said that there is no possibility that the former Specialized Credit Financial Business Act’s legal interests related to the use of credit cards can be maintained at least in maintaining a sound credit order, but it can be said that there is no concern that the former Specialized Credit Financial Business Act’s legal interests can not be protected separately from those of the former Specialized Credit Financial Business Act’s acts of lending to the same credit card company, such as those of lending to the same credit card company.
In addition, if the above act is not so unfased as above and it is viewed as a blanket crime as shown in the judgment of the court below, the remaining crimes that existed before the final judgment can not be held criminal liability due to res judicata, and this point is much more likely to be easily admitted by our legal sentiment.
Ultimately, the court below erred by misapprehending the legal principles on the number of crimes of violation of Article 70 (2) 3 of the Specialized Credit Financial Business Act (Article 25 (2) 4 of the former Credit Card Business Act) and thereby affecting the conclusion of the judgment. The prosecutor's assertion pointing this out is with merit.
4. Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the judgment is delivered again as follows.
Criminal facts and summary of evidence
Since the criminal facts of the defendant recognized as a party member and the summary of the evidence are the same as that of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Article applicable to criminal facts;
Article 70 (2) 3 of the Specialized Credit Finance Business Act (Selection of Imprisonment);
1. Aggravation of concurrent crimes;
Articles 37 (former part of Article 37 and 38 (1) 2 of the Criminal Act. (Aggravation of concurrent crimes with punishment prescribed in the Specialized Credit Finance Business Act which has prepared a false sales slips by a non-spe card with the largest holding that the offense is committed)
1. Calculation of the number of detention days before sentencing;
Article 57 of the Criminal Act
1. Suspension of execution;
Article 62 (1) of the Criminal Act (Taking into account the fact that there is no previous conviction of the same kind and is against the other person)
Parts of innocence
The prosecutor separately indicted the part of the attached Table 1 to 15 of the crime committed in violation of the former Credit Card Business Act among the facts charged as guilty.
However, from September 24, 1997 to December 22, 1997, it is recognized as having a relation of a single comprehensive crime with the remaining crime with the same content that continued by using the card of the same credit card company, since all of them made a false sales slip by making use of the card and made funds, it shall be recognized that there is a relation of a single comprehensive crime with the other crime that continued by using the card of the same credit card company. Thus, it should be sentenced to not guilty for part of a single comprehensive crime, and each act of the judgment including this is punished as a single comprehensive crime of violation of Article 70 (2) 3 of the Specialized Credit Finance Business Act at the time of the completion of the act. Thus, in the text, the judgment of innocence shall not be sentenced separately.
It is so decided as per Disposition for the above reasons.
Judges Choi Jin-jin (Presiding Judge)