Defendant 1 and one other

Defendant 1 and Prosecutor

St. L. L.C.

Attorney Yang Sung-hoon

Seoul Central District Court Decision 2005Ra4949 Decided October 19, 2005

Of the judgment of the court below, the part on Defendant 1 is reversed.

Defendant 1 shall be punished by imprisonment for one year.

68 days of detention before 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.

One unit (No. 1), four non-electrics (No. 2 and 3), one body size (No. 4), and three earphones (No. 5) shall be confiscated from Defendant 1.

To order Defendant 1 to provide community service for 160 hours.

Of the facts charged against Defendant 1, each of the charges is acquitted.

The prosecutor's appeal against the defendant 2 is dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

(1) Legal principles

As long as the defendant is punished for a violation of the Punishment of Violences, etc. Act (at night and joint conflict) in relation to the act of taking money by threatening the victims and using the credit card, the act of using the credit card should be deemed to have been absorbed into the above crime. However, the court below erred by misapprehending the legal principles on the crime of violation of the Specialized Credit Finance Business Act and the number of crimes committed in violation of the Specialized Credit Finance Business Act.

(2) Unreasonable sentencing

The sentence of the court below is too unreasonable because it is too unreasonable.

B. Public Prosecutor (Defendant 2)

According to the evidence submitted by the prosecutor, although it is sufficient to recognize that Defendant 2 had made a transaction by credit cards by pretending to sell goods despite the fact that Defendant 2 had not actually sold goods for the purpose of financing Defendant 1, the court below acquitted Defendant 2 on the ground that Defendant 2 actually sold the goods. Thus, the court below erred by misapprehending the legal principles as to Article 70 (2) 3 of the Specialized Credit Finance Business Act or by misapprehending the legal principles

2. Judgment on the grounds for appeal by Defendant 1’s misapprehension of legal principles

A. Summary of facts charged concerning violation of specialized credit financial business

Defendant 1 in collusion with Nonindicted 1, Nonindicted 2, Nonindicted 3, and Nonindicted 4 (Nonindicted 4)

On August 2, 2005, at around 02:29, in the Gangnam-gu Seoul Metropolitan Government Geumdong (number omitted) Building (name omitted), the entertainment tavern "(name omitted)" opened five empty bottles on the victim non-indicted 5's 1,350,000 won of the drinking value after using an malicious impression to Non-indicted 5, and Defendant 1 stated that "the drinking value is calculated when the victim makes a good horse," and Defendant 1 stated that "the drinking value is calculated" would be the victim's life, body, and any harm if the victim did not pay the drinking value, the non-indicted 1 paid the above 600,000 won of the above EL card from the convenience point to the above 600,000 won of the national card and the above 600,000 won of the above 60,000 won of the sales slip to the above 250,000 won of the sales slip from each of the above 1,505,005.

B. Determination

According to the evidence of the court below, it is acknowledged that the defendant operated an unauthorized entertainment drinking club with the name of "(trade name omitted)" from the beginning of January 2005, the defendant agreed to demand excessive drinking value to the victims as stated in the facts charged, and to pay a certain amount in accordance with the drinking value by assaulting or threatening the victims who resisted to do so. The defendant, who directly received cash from the victims or received a credit card from the victims, made cash payments by means of cash services or by purchasing goods at the convenience store (trade name omitted) in the vicinity of the victims, and that the defendant, when using a credit card, had the main employees purchase cash services or goods using the credit card received from the victims, and brought them to the main office and made them sign sales slips directly with the victims.

(1) The term "use of a credit card" under Article 70 (1) 4 of the Specialized Credit Financial Business Act means a series of acts by which the credit card holder presents a credit card to a credit card merchant for the payment of the price, and signed and issued it. The defendant's act of purchasing goods by using a credit card of the victims, even if the defendant or his employees purchased goods by presenting the credit card, the defendant's act of directly signing the sales slip and allowing the defendant, etc. to submit the above sales slip to the credit card, cannot be deemed to have used the credit card, and (2) the victims permitted the use of the credit card within the extent of the agreed amount and agreed to pay a certain amount of the defendant's and agreed amount of the credit card, but it is reasonable to view that the defendant received the credit card from the victims by assault or intimidation, but it is not reasonable to deem that the defendant presented the credit card to a credit card merchant or received cash services from the victims, or that the defendant or his employees did not directly use the credit card without receiving the cash services from the victims.

Therefore, since each of the above facts charged constitutes a case where there is no proof of facts constituting the crime, it should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act, the court below found the defendant 1 guilty. Thus, the appeal pointing this out is justified

3. Judgment on the prosecutor's grounds for appeal

A. Summary of the facts charged against Defendant 2

Defendant 2 opened and operated a card merchant with the trade name of “(trade name omitted)”. From January 2005, Defendant 1 received the request from Defendant 1 to pay as if he purchased goods at the convenience store with the credit card of an entertainment drinking club customer and to provide funds.

On August 2, 2005, around 02:29, at (trade name omitted) convenience stores located in the Gangnam-gu Seoul Metropolitan Government (Seoul), Nonindicted 5 prepared a false sales slip as if he purchased goods equivalent to KRW 600,000 by using his EL branch card, issued tobacco and alcoholic beverage equivalent to the credit card settlement amount after two to three days, and provided funds from around August 2, 2005 to around that time, and provided funds by pretending the sale of goods or the provision of services on nine occasions, such as the list of crimes in the annexed sheet of the court below.

B. Determination

Article 70 (2) 3 of the Specialized Credit Financial Business Act provides that "a person who makes a transaction by credit cards or makes a loan to make a transaction by credit cards in excess of the actual sales amount or the actual sales amount, or a person who mediates or arranges such transaction by credit cards" shall be punished. It is not true that credit sales have been made despite the absence of credit card transactions, but it is not true that credit sales have been made, or that sales slips have been made by credit cards in excess of the actual sales amount, but in case where sales slips have been actually made by credit cards and the sales slips have been made as they are, it shall not be included in

According to the statement of each prosecutor's protocol of interrogation against the Defendants, around January 2005, Defendant 2 received a request from Defendant 1 to settle the goods as if they were purchased at the convenience store of the entertainment tavern customers and to provide financing, but refused to do so and take them into cash instead of cash. Accordingly, Defendant 1 can be acknowledged as having actually purchased at the convenience store of Defendant 2 with credit card of the entertainment tavern customers and tobacco or alcoholic beverages equivalent to the amount stated in the sales slip, and used it or sold to other customers. As long as sales slips were made according to the sales slip as well as goods transaction by credit card was made, Defendant 1 received from the purpose of approving the liquor value of the entertainment tavern customers, and Defendant 2 had no other evidence to deem that there was no other act of selling the goods.

Therefore, the judgment of the court below that acquitted Defendant 2 on the ground that each of the facts charged against Defendant 2 constitutes a case where there is no proof of criminal facts is justifiable.

The prosecutor's assertion is without merit.

4. Conclusion

Therefore, (1) In accordance with Article 364(4) of the Criminal Procedure Act, the public prosecutor’s appeal against Defendant 2 is dismissed. It is so decided as per Disposition. (2) The part of the judgment below against Defendant 1 among the judgment below pursuant to Article 364(6) of the Criminal Procedure Act is reversed, and the following decision is delivered after pleading.

The summary of the facts constituting a crime and evidence against Defendant 1 recognized by this court is deleted from the facts constituting a crime of the original judgment, and except for the change of Paragraph 3 to Paragraph 2, since all of the entries in the corresponding column of the original judgment are the same as that of the corresponding column of the original judgment, they are cited as it is in accordance with Article

1. Article applicable to criminal facts;

Article 2(2) and (1) of the Punishment of Violences, etc. Act, Article 350(1), and Article 30 of the Criminal Act (Acts of Night and Joint Confession) and Articles 74-2 and 22(1) of the Food Sanitation Act (Acts of entertainment tavern business without Permission)

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes against the victim non-indicted 6 in violation of the Punishment of Violences, etc. Act (at night and jointly rapion), which is the most severe punishment and punishment)

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Social service order;

Article 62-2 (1) of the Criminal Act

Of the facts charged against Defendant 1, the summary of the violation of each specialized credit financial business among the facts charged is as stated in Article 2-1 (a) of the judgment, and there is no evidence to prove that Defendant 1 used the credit card acquired by Defendant 1 through his attack, as stated in Article 2-2 (b) of the Criminal Procedure Act, and thus, each of the above facts charged shall be acquitted under the latter part of

In addition to a fine, there are no specific criminal records for the defendant, the amount of damage is not high, and both victims and victims have reached an agreement.

[Attachment List omitted]

Judges Heung-han (Presiding Judge)