[1] Whether gambling in a foreign casino that does not punish the crime of gambling is illegal (affirmative)

[2] Criteria for determining whether a loan of money constitutes "loan of money" under Article 21 (1) 1 of the former Foreign Exchange Control Act

[3] The case holding that the act of receiving a "chips" in lieu of cash from a hotel for the purpose of gambling on credit in a foreign casino constitutes monetary lending and borrowing under the old Foreign Exchange Control Act

[1] Article 3 of the Criminal Code provides that "this Act shall apply to a national who commits a crime outside the territory of the Republic of Korea," with the principle of belonging to the scope of application of the Criminal Code, and from the perspective of national policy, entry into a casino by exceptionally allowing a national's entry for more national interests than the protected legal interests of the crime of gambling in accordance with the Special Act on the Assistance to the Development of Abandoned Mine Areas, etc. of Abandoned Mine Areas shall be excluded as an act under the law. However, the illegality of gambling in a foreign casino that does not punish gambling, alone, shall not be avoided.

[2] In determining whether a person constitutes "loan and borrowing of money" under Article 21 (1) 1 of the former Foreign Exchange Control Act (repealed by Article 3 of the Addenda to the Foreign Exchange Control Act, Law No. 550 of September 16, 1998), it shall not be decided by the kind of goods delivered to the party, but shall also be decided by considering the parties' intentions, etc.

[3] The case holding that it constitutes a monetary lending and lending stipulated in the old Foreign Exchange Control Act (repealed by Article 3 of the Addenda to the Foreign Exchange Control Act, Law No. 5550 of September 16, 1998) on the ground that the delivery of "chips" in lieu of cash from a hotel is practically borrowed money and received "chips" in lieu of money in a foreign casino, or exchanged borrowed money with "chips"

[1] Article 3 of the Criminal Code / [2] Article 21 (1) 1 of the former Foreign Exchange Control Act (repealed by Article 3 of the Addenda to the Foreign Exchange Control Act, Law No. 5550 of September 16, 1998) (see current Article 18 (2) 2 of the Foreign Exchange Control Act) / [3] Article 21 (1) 1 of the former Foreign Exchange Control Act (repealed by Article 3 of the Addenda to the Foreign Exchange Control Act, Law No. 550 of September 16, 1998) (see current Article 18 (2) 2 of the Foreign Exchange Control Act)

Defendant

Prosecutor and Defendant

Attorney Hong Hong-soo

Seoul District Court Decision 98No491 delivered on May 1, 2002

The judgment below is reversed, and the case is remanded to Seoul Central District Court Panel Division.

1. Judgment on the Defendant’s grounds of appeal

A. Regarding the violation of the Foreign Exchange Control Act

(1) In light of the records, the court below found the defendant guilty of this part of the facts charged by finding that the defendant was a party to a transaction with respect to the creation of a claim arising from a monetary lending contract between a resident and a nonresident by borrowing USD 40,000,000,000,000,000 from the last day on March 15, 1997 and March 19, 197, without the permission of the Minister of Finance and Economy by integrating the adopted evidences. In light of the records, the selection of evidence and fact-finding of the court below is just, and there is no error of law by failing to conduct the deliberation or by

(2) According to the records, among the facts charged against the violation of the Foreign Exchange Control Act, the facts charged that the defendant borrowed USD 84,00 from Nonindicted Rolo on March 14, 1997 and the facts charged in the court below acknowledged that the defendant borrowed USD 20,000 each time on March 15, 1997 and March 19, 197 among them, are different, and there are only several basic facts, and there is no possibility that the defendant may have any substantial disadvantage in exercising his right to defense in light of the trial process, and it can be found guilty without any changes in the indictment. Therefore, it is proper that the court below found the defendant guilty without any changes in the indictment, and there is no error as alleged in the grounds for appeal.

B. As to the illegality of gambling in a casino

Article 3 of the Criminal Act provides that "this Act shall apply to a national who commits an offence outside the territory of the Republic of Korea." In addition, from a national policy standpoint, entry to a casino pursuant to the Special Act on the Assistance to the Development of Abandoned Mine Areas, etc. which exceptionally permits nationals' entry for more national interests than the protected legal interests of the crime of gambling, shall be excluded from the illegality of the act under the law. However, the illegality of gambling in a foreign casino which does not punish gambling crime cannot be avoided merely because it is a gambling in a foreign casino which does not punish gambling crime. Thus, the court below is just in finding the defendant guilty of gambling in the case of the crime of gambling committed habitually from September 19, 196 to August 25, 197, and there is no error of law such as misunderstanding the legal principles as to the illegality of the crime of gambling, as argued in the Grounds for Appeal.

2. Judgment on the grounds of appeal by the prosecutor

With respect to the charge of violation of the Foreign Exchange Control Act due to money lending and borrowing

A. Article 30 (1) 9 of the former Foreign Exchange Control Act (repealed by Article 3 of the Addenda to the Foreign Exchange Control Act, Act No. 550 of September 16, 1998, hereinafter the same applies) provides that a person who engages in capital transactions shall be punished, and Article 21 (2) of the same Act provides that a person who intends to become a party to a transaction in connection with the creation, alteration, or extinction of claims arising from a contract for deposit between a resident and a nonresident, a trust contract, a lending and borrowing contract of money, a guarantee contract of obligations, or a contract for purchase and sale of means of foreign payment or claims between a resident and a nonresident, shall be subject to the permission of the Minister of Finance and Economy.

B. The court below found the defendant not guilty on the charges of violation of the Foreign Exchange Control Act that the defendant borrowed each amount of USD 40,000,000 from USD 4,000,000 among the annexed crime list Nos. 4,000 among the annexed crime list Nos. 84,00 in U.S. dollars, because there is insufficient evidence to acknowledge it, and the defendant borrowed "chips" from the hotel with the highest or regular use as marketing manager from the hotel with the above crime list, and then borrowed "chips" does not constitute monetary lending and borrowing under the former Foreign Exchange Control Act, and it does not constitute another transaction under Article 21 (1) 1 of the former Foreign Exchange Control Act. Thus, even if the defendant did not obtain permission, it does not constitute a crime or there is no proof of a criminal fact.

C. However, we cannot accept the above determination by the court below for the following reasons.

In determining whether it falls under "loan and lending of money" under Article 21 (1) 1 of the former Foreign Exchange Control Act, it is necessary not to decide by the kind of goods delivered to the parties, but to consider the intention of the parties, etc.

In light of the records, for gambling on credit in the casino of a hotel such as a hotel, the limit of borrowing with the hotel shall be set in advance, and the amount of chips as stated in US dollars shall be issued to the hotel and sold to the hotel, and the "chips" shall be used for gambling in the casino, so it is a certificate used as a substitute for cash, so it is reasonable interpretation that the defendant's receipt of "chips" from the hotel is against the will of the party concerned, and it is reasonable interpretation.

Therefore, the defendant's act does not merely borrow "chips used in casino", but in substance, it should be deemed that the defendant borrowed money from the above hotel, received "chips" in lieu of such money, or exchanged money with "chips". On the other hand, the court below decided that the defendant's act does not constitute monetary lending and borrowing under the former Foreign Exchange Control Act merely because the "chips" actually delivered in lieu of money borrowed are the objects of loan for consumption, and that the "chips" do not constitute monetary lending and borrowing under the former Foreign Exchange Control Act, or erred by misapprehending the meaning of the transaction between the defendant and the above hotel, thereby affecting the conclusion of the judgment.

The Prosecutor’s ground of appeal on this part is with merit.

3. Therefore, the non-guilty part of the judgment of the court below shall be reversed without the public prosecutor's remaining grounds of appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench, since the crime and the guilty part of the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act, and one sentence shall be imposed. Thus, the whole judgment of the court below is reversed and the case

Justices Kim Yong-dam (Presiding Justice)