[1] The meaning of "credit card acquired through taking of lectures, embezzlement, deception, deception, or extortion" under Article 70 (1) 4 of the Specialized Credit Finance Business Act

[2] The case holding that where an entertainment drinking house proprietor agreed to receive a certain amount of money from the victims by assaulting or threatening them to claim excessive drinking value, and the victims received cash services or purchased goods by means of a credit card that the victims settled, it is difficult to view that the victims’ possession of a credit card was separated or excluded from the victims’ intent, and thus, it does not constitute an illegal use of credit card under the Specialized Credit Financial Business Act

[3] In a case where there is a transaction of goods by credit cards and sales slips are prepared according to the sales amount, whether it is included in the punishment of Article 70 (2) 3 (a) of the Specialized Credit Finance Business Act (negative)

[4] The case holding that in a case where a convenience store owner's act of convenience store's act of pretending to sell goods or provide services, etc. under the Specialized Credit Finance Business Act, in a case where the convenience store owner's act of convenience store's act of selling goods or offering services, etc. under the Specialized Credit Finance Business Act, by allowing the victims who are customers of entertainment tavern to pay the drinking value with a credit card and providing goods equivalent to the settlement

[1] According to Article 70 (1) 4 of the Specialized Credit Financial Business Act, "a person who sells or uses credit cards or debit cards acquired by taking by taking by force, embezzlement, or by deceiving or threatening a person, shall be punished by imprisonment for not more than seven years or by a fine not exceeding 50 million won." The credit cards acquired by taking by force, embezzlement, deception, or extortion do not go against the owner or possessor's will, but refers to the credit cards, the possession of which is deprived of, or the possession of which is exempted against his will.

[2] The case holding that where an entertainment drinking house proprietor agreed to receive a certain amount of money from the victims by assaulting or threatening them to claim excessive drinking value, and the victims received cash services or purchased goods by credit card agreement that they settle, it is difficult to view that the victims' possession of credit card was separated or excluded from the victims' intent, and thus, it does not constitute an illegal use of credit card under the Specialized Credit Financial Business Act.

[3] In order to meet the requirements under Article 70 (2) 3 of the former Specialized Credit Finance Business Act (amended by Act No. 7531 of May 31, 2005) and Article 70 (2) 3 (a) of the current Specialized Credit Finance Business Act, a credit transaction is required to be made by credit cards in excess of the actual sales amount, despite the absence of a credit card transaction, and a credit transaction is required to be made by credit cards in fact or in excess of the actual sales amount, and it is not included in the punishment under the above Act.

[4] The case holding that in case where a convenience store proprietor provided an entertainment drinking club proprietor with a credit card of the victims who are customers of entertainment drinking club business to pay the drinking value with a credit card and goods equivalent to the settlement price and disposed of it at the arm's length price or at a discount price to other persons, although there was no intent to pay credit card payments to the victims, it is difficult to view that the convenience store proprietor's act was the act of pretending to sell goods or provide services under the Specialized Credit Financial Business Act as long as sales slips were prepared according to the sales price

[1] Article 70 (1) 4 of the Specialized Credit Finance Business Act / [2] Article 70 (1) 4 of the Specialized Credit Finance Business Act / [3] Article 70 (2) 3 of the former Specialized Credit Finance Business Act (amended by Act No. 7531 of May 31, 2005), Article 70 (2) 3 (a) of the Specialized Credit Finance Business Act / [4] Article 70 (2) 3 of the former Specialized Credit Finance Business Act (amended by Act No. 7531 of May 31, 2005), Article 70 (2) 3 (a) of the Specialized Credit Finance Business Act

[1] Supreme Court Decision 99Do857 delivered on July 9, 1999 (Gong1999Ha, 1675) / [3] Supreme Court Decision 2000Do3916 delivered on November 10, 200, Supreme Court Decision 2003Do6606 Delivered on March 11, 2004 (Gong2004Sang, 666)

Defendant 1 and one other

Prosecutor

Seoul Central District Court Decision 2005No3502 Decided December 29, 2005

The appeal is dismissed.

1. Summary of facts charged as to each of the Specialized Credit Finance Business Act

around 02:29 on August 2, 2005, Defendant 1: around 02:29, at the entertainment tavern operated by himself (title omitted) in Gangnam-gu (Seoul), demanded 1.3,50,000 won at the following alcohol rates: The above Nonindicted Party’s intimidation from the above Nonindicted Party’s convenience store to the above Nonindicted Party’s card and the national card were issued, and then the said Nonindicted Party paid KRW 600,000 with the above EL card and KRW 600,000 with the above national card; from around 21, 2005 to August 29, 2005, the said Nonindicted Party signed the sales slip to use the credit card purchased from the above Nonindicted Party’s 200,000 won from around 205 to around 29, 2005, and Defendant 2 purchased the sales slip from the said Nonindicted Party’s purchase of the goods at around 25, 205.

2. Determination on the grounds of appeal as to Defendant 1

According to Article 70 (1) 4 of the Specialized Credit Financial Business Act, "a person who sells or uses credit cards or debit cards acquired by taking by force or embezzlement, or by deceiving or threatening a person, shall be punished by imprisonment for not more than seven years, or by a fine not exceeding 50 million won." Here, "illegal use" refers to a case where a credit card or debit card acquired by taking by force, embezzlement, deception, or extortion is used in accordance with its original usage as a genuine card (see Supreme Court Decision 2005Do4233, Jul. 29, 2005), and "credit cards acquired by force or embezzlement, embezzlement, deception, or extortion" shall be deemed to refer to a credit card that has been occupied or excluded from its possession against its will without resorting to its owner or possessor's intention (see Supreme Court Decision 9Do857, Jul. 9, 199).

However, according to the records, Defendant 1 agreed to receive a certain amount of money from the victims by assaulting or threatening the victims claiming excessive drinking value, and agreed to receive a cash service as agreed upon by the victims, or purchasing drinking and tobacco at convenience stores as agreed upon, and 2-3 days after the issuance of sales slips through the victims' signature, and 2-3 days after the issuance of sales slips at convenience stores, and made a sales slip and set up sales slips for the amount of credit card payment to be delivered at convenience stores. As such, even if the victims received cash services or purchased goods with only feassing credit cards, and signed by the victims, it is difficult to view that Defendant 1, even if the victims were to have caused the victims to pay the amount of money by assaulting or threatening the victims, the possession of the victims on credit cards was excluded or excluded without the victims' intent.

Therefore, the judgment of the court below that acquitted Defendant 1 on the above facts charged is just, and there is no error of law such as misconception of facts due to violation of the rules of evidence or misunderstanding of legal principles as to the Specialized Credit Financial Business Act, as

3. Judgment on the grounds of appeal as to Defendant 2

Article 70 (2) 3 of the former Specialized Credit Financial Business Act (amended by Act No. 7531 of May 31, 2005) and Article 70 (2) 3 (a) of the current Specialized Credit Financial Business Act provide that "any person who makes a transaction by credit cards or makes a credit card transaction by pretending to sell goods or provide services, etc. or in excess of the actual sales amount, or makes a credit card transaction by proxy, or mediates or mediates such transaction," shall be punished by imprisonment for not more than three years or by a fine not exceeding 20 million won." In order to meet the requirements prescribed in Article 7 of the above Act, even if there was no actual credit card transaction, it is necessary to make a transaction by credit cards most likely to have been credit sales or in excess of the actual sales amount, and it is not included in the subject of punishment prescribed in Article 70 (2) 3 (a) of the above Act (see Supreme Court Decision 2003Do6606 of March 11, 2004).

However, according to Defendant 1’s agreement, the victims received cash services or purchased goods using a credit card and signed by the victims, and according to the records, Defendant 2 provided that Defendant 1 would continue to pay for the victims’ credit card price with the victims’ credit card price, and provided the victims’ payment and tobacco equivalent to the settlement price after 2-3 days, even if Defendant 2 knew that Defendant 1 would dispose of the goods received by Defendant 1 at the arm’s length price or at a discount price, it is difficult to view that Defendant 2 was the act of selling goods or providing services, even if Defendant 2 knew that he would dispose of the goods received by Defendant 2 at the arm’s length price or at a discount price.

Therefore, the judgment of the court below which affirmed the judgment of the court of first instance which acquitted Defendant 2 is just, and there is no error in the misapprehension of legal principles as to the Specialized Credit Financial Business Act, as otherwise alleged in the ground

4. Conclusion

Therefore, the prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)