Defendant

Defendant

Kim Jae-at (prosecution) and a pilot;

Law Firm Jeong-woo, Attorney Lee Nam-he

Busan District Court Decision 2017 Height487 Decided November 22, 2017

The judgment of the court below is reversed.

Defendant shall be punished by a fine of 25 million won.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

1. Summary of grounds for appeal;

A. Legal principles

1) As to the facts charged in violation of the Act on the Registration of Credit Business, etc. and Protection of Financial Users (hereinafter “Violation of the Credit Business Act”), the Defendant’s purchase of gift certificates from persons who intend to obtain small loans does not constitute a lending act as a legitimate gift certificate transaction. 2) As to the facts charged in violation of the Act on the Promotion of Information and Communications Network Utilization and Information Protection, etc. (hereinafter “Violation of the Information and Communications Network Act”), gift certificates do not constitute goods under the Information and Communications Network Act as securities, and the Defendant did not directly participate in the purchase of goods, etc. by users of telecommunications billing services. Nevertheless, the judgment below convict

B. Unreasonable sentencing (Defendant)

The punishment sentenced by the court below (six months of imprisonment, two years of suspended execution) is too unreasonable.

2. Determination

A. Legal principles

1) As to the assertion of misapprehension of legal principles as to the violation of the Credit Business Act

In full view of the following facts duly admitted and examined by the court below, the act of the defendant as stated in the facts charged constitutes the act of lending money substantially. Therefore, this part of the defendant's assertion is without merit.

① The Defendant posted several advertisements, such as “small-sum loans and cashing of small-sum settlement,” on the Internet car page, blobb, website, etc., and the clients paid gift certificates. The Defendant immediately wired money excluding fees out of the aforementioned settlement amount to the account in the name of the clients. In other words, the clients received gift certificates after paying the gift certificates.

② The purpose of the clients was not to immediately receive money from the Defendant, rather than to purchase gift certificates, and the Defendant was also to deliver money to the clients after deducting some of the fees through the above method.

③ The Defendant had the clients purchase gift certificates through the mobile phone settlement, and then remitted only part of the settlement amount to the clients, and the clients should pay the full amount of the settlement amount on the date of the mobile phone payment. As such, the Defendant borrowed the money from the Defendant with the interest deducted from the advance interest and must pay the full amount of the principal after approximately one to two months.

2) As to the assertion of misapprehension of legal principles as to the violation of Information and Communications Network Act

Comprehensively taking account of the following circumstances acknowledged by the evidence duly admitted and examined by the court below, it is sufficiently recognized that the defendant had users of telecommunications billing services purchase goods, etc. through telecommunications and gold services, as stated in the facts charged, and then purchased goods at a discounted price. Accordingly, this part of the defendant's assertion is without merit.

(1) The term “goods” refers to goods or rights having property value and merchandise coupons are also included in goods under the Information and Communications Network Act. The Defendant asserts that merchandise coupons constitute sale of securities, which are not goods or services under the Value-Added Tax Act, but does not include goods under the Information and Communications Network Act. However, the interpretation that securities are not goods subject to taxation because they fall under goods free of or exempt from customs under the Value-Added Tax Act does not constitute grounds for not

② The Defendant posted an advertisement such as “small-amount loans and cashing of settlement,” through the Internet car page, etc., and thereafter, conducted business by checking the mobile phone communications network to the users who wish to have a counseling, and by holding the domain name of merchandise coupon purchase sites suitable therefor. This constitutes an act of soliciting users to purchase merchandise coupons using communications and cash services, and it is difficult to view the aforementioned Defendant’s act as merely an instruction on the method of purchasing merchandise coupons.

B. Unreasonable sentencing

The crime of this case is likely to be criticized in that it disturbs economic order by receiving interest by using the wife of the ordinary people who need small amount of pay, and by abusing the small-amount settlement system, and by pretending goods transaction. However, there is room for re-rupture as a sound social person, since the Defendant has yet to be aged as a primary offender, and is going against the public official recruitment examination book in the future. In addition, in full view of various circumstances, such as the Defendant’s age, living environment, family relationship, and circumstances after the crime, etc., the punishment sentenced by the lower court is unreasonable.

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following judgment shall be rendered again after

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 19 (1) 1 and 3 (1) of the Act on Registration of Credit Business, etc. and Protection of Finance Users (the occupation of unregistered credit business), Article 72 (1) 4 (b) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (the occupation of self-financial services through telecommunications billing services), and selection of fines.

1. Aggravation for concurrent crimes;

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

1. Detention in a workhouse;

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

The sentence identical to the order shall be determined in consideration of the circumstances in the above reasons for reversal.

Judge final (Presiding Judge)