(영문) 서울중앙지방법원 2020.12.21. 선고 2020고단5847 판결

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting 100,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The charge of violating the Specialized Credit Finance Business Act is acquitted.

Reasons

Criminal facts

1. Embezzlements of lost possession;

Around 08:40 on June 2, 2020, the Defendant acquired a government disaster support fund C card owned by the victim who was lost by the victim B from the stairs of subway No. 4, but did not follow necessary procedures, such as returning it to the victim, and embezzled it.

2. Fraud;

On June 2, 2020, the Defendant, at around 08:59, presented to the business owner the “D” acquired B’s card as referred to in the above paragraph (1), as if he had completed the said card, and purchased at least 13,000 won at the market price, such as mixing coffee and paper cup, and received the payment with the above C card and received the property of the victim.

3. Attempted fraud.

At around 09:01 on June 2, 2020, the Defendant presented the said C Card to the business owner at the same place as above 09:01, and purchased the amount equivalent to KRW 5,600 at two market prices of “Kanco” and attempted to settle the price with the said C Card, but was not approved by a theft report.

Summary of Evidence

1. Defendant's legal statement;

1. Police suspect interrogation protocol of the accused;

1. B written statements;

1. Card sales slips;

1. Investigation report (D braille owners and CCTV counter-investigation);

1. Response data (C Card)

Application of Statutes

1. Article applicable to criminal facts;

Article 360 of the Criminal Act, Article 347(1) of the Criminal Act, Articles 352 and 347(1) of the Criminal Act, selection of fines for negligence

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

The defendant recognized the facts of crime, there are no other criminal records, and the amount of damage is relatively small: Provided, That the defendant's age, economic circumstances, the background of the case, circumstances after the crime, criminal records, and other various sentencing factors indicated in the arguments and records of this case shall be determined as ordered by taking into account the following factors.

The acquittal portion

1. Summary of the facts charged

The summary of the charge of violation of the Specialized Credit Financial Business Act is that the defendant presented the credit card acquired by him as his own as stated in the crime No. 2 and used the lost credit card.

2. Determination

According to the records of this case, the defendant's card that he acquired and used without permission (hereinafter referred to as "the card of this case") is charged with the 'government disaster subsidy card corresponding to the recharge-type card'. Accordingly, it is acknowledged that the defendant presented it to a franchise store by the State or local government, and there is no evidence that the defendant signed a sales slip, made a follow-up payment transaction with the card of this case, or made a prompt transfer from the financial account of the victim. Thus, the card of this case constitutes a pre-paid card under the Specialized Credit Financial Business Act (Article 2 subparagraph 8 of the above Act).

However, Article 70 (1) 3 of the above Act does not stipulate that a person who sells or uses a lost or stolen credit card or a debit card shall be punished, but does not stipulate that a person who uses a lost pre-paid card shall be punished, and it cannot be interpreted that such legal provision is punished including a person who uses a lost pre-paid card.

Therefore, even if the defendant used the instant card lost by the victim, it is insufficient to view that it constitutes "use of stolen credit cards or debit cards" under the Specialized Credit Financial Business Act, and there is no other evidence to acknowledge it.

3. Conclusion

Thus, since this part of the facts charged constitutes a case where there is no proof of the facts charged, it is decided as per Disposition by the Supreme Court Decision on the acquittal under Article 325 of the Criminal Procedure Act and Article 58 (2) proviso of the Criminal Act not to disclose the summary of the judgment.