[1] The liability and the number of offenses in the case of receiving cash services or purchasing goods from a franchise store using a credit card in his/her name without intent or ability to pay a loan normally

[2] The case reversing the judgment below that the withdrawal of cash through an automatic cash payment machine does not constitute a crime of fraud

[1] Credit card transactions are conducted by a credit card company where a person who has been issued with a credit card from the credit card company purchases goods from the credit card merchant, and the person holding and using the credit card has paid the price to the credit card merchant, and the credit card company has a monetary claim to loan the card user to the credit card company, and if the credit card user receives cash services through an automatic cash payment, it is established a cash lending relationship. The act of using the credit card which causes monetary claims of the credit card company by using the credit card is conducted within a certain limit, and the lending of money by using the credit card is comprehensively permitted in advance at the time of issuing the credit card, and the payment through the automatic cash payment system is also allowed by the credit card company, regardless of its intention to use the credit card, and it is merely a payment made by the automatic payment method. Thus, the defendant is allowed to purchase the credit card through the credit card company's comprehensive purchase of money through the credit card, regardless of its intention to use the credit card, and the defendant is allowed to do so within a certain limit of the amount of cash payment through the credit card company's.

[2] The case reversing the judgment of the court below that cash withdrawal through an automatic cash payment instrument does not constitute a crime of fraud on the ground that there is an error in the misapprehension of legal principles as to the elements of fraud

[1] Article 347 (1) of the Criminal Act (amended by Act No. 5057 of Dec. 29, 1995) / [2] Article 347 (1) of the Criminal Act (amended by Act No. 5057 of Dec. 29, 1995)

[1] Supreme Court Decision 85Do1572 delivered on March 25, 1986 (Gong1986, 730) Supreme Court Decision 95Do97 delivered on July 28, 1995 (Gong1995Ha, 3034)

Defendant

Prosecutor

Suwon District Court Decision 95No1148 delivered on September 28, 1995

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below held on December 10, 192 that the defendant was issued a credit card as if he would normally settle the loan borrowed from the above bank by using the credit card at the closing point of a commercial bank around December 10, 1992, and that the defendant was issued a credit card as if he would settle the loan normally, and then, the above credit card would not constitute a person who was given the money by means of deception and mistake on the part of the defrauded and the act of disposal as stated in the annexed crime No. 2 of the judgment of the court below until September 1 of the same year, as in the annexed crime No. 2 of the judgment of the court below, if he inputs the above credit card into the cash automatic machine installed at the inside and outside central point of a commercial bank, and divided cash service servers into cash 300,000 won by means of the same method until September 22 of the same year, as in the annexed crime No. 2 of the judgment below. 300,623 won.

However, the gist of the facts charged above is that the commercial bank, the victim, was arrested by the insolvent defendant and allowed the defendant to take credit loans in the way of withdrawing cash from the automatic cash payment machines by using the credit card, and the defendant withdrawn cash accordingly, so the transaction of the false credit card is done by the person who was issued the credit card from the credit card company, and if the person who was issued the credit card from the credit card company purchases the goods from the credit card merchant using the credit card, the credit card company, who was issued with the credit card, pays the price to the credit card merchant, and the credit card company, borrowed the money to the credit card user, and the credit card company, if the credit card user received the cash service through the automatic cash payment, and the credit card user's act of using the credit card becomes a cash loan relationship with the credit card company within a certain limit, and the act of using the credit card to take place within the limit of the credit extension to the extent permitted in advance by the credit card company, which is only a cash payment method permitted in advance by the credit card holder.

Thus, as in this case, the defendant pretended that he does not have the intent and ability to pay the price due to the use of the card, and the credit card company permits the use of the card to a certain extent by causing mistake, thereby receiving cash loans through automatic payments by taking advantage of the defective declaration of credit extension by the deceiving credit card company, and receiving the cash loans through the card issuing company through the card store and causing damage equivalent to the same amount, thereby comprehensively taking account of a series of frauds due to the use of the card.

Therefore, in this case, the credit card company's loss caused by the use of the card is an inclusive crime of fraud, regardless of whether it was a withdrawal by automatic payment or a purchase of goods through a franchise store, which is based on the issuance of the card by deception of the credit card company that is a victim, regardless of whether it was a purchase of goods by automatic payment.

Nevertheless, there is an error of misapprehension of the legal principles as to the elements of fraud in the judgment of the court below, which held in different opinions that only the part of the facts charged in this case, which received cash loans through an automatic cash payer, shall be considered as larceny, and that the principal claim does not constitute fraud.

However, the instant case was prosecuted on the ground that the facts charged by the lower court constituted a crime of fraud and a blanket crime, and the lower court deemed that the said fraud and the larceny facts, which are the ancillary facts of this case, are concurrent crimes, and sentenced to a single punishment, and thus, the lower court reversed the entire judgment of the lower court and remanded the case to the lower court for a new trial and determination. It is so decided as per Disposition

Justices Kim Jong-soo (Presiding Justice)