[1] Whether a selling company's act of claiming a price without notifying that it was the delivery details of the most false service provided to the credit card company in a transaction using the "exclusive-use card for business purchase" constitutes deception of fraud (affirmative with qualification)

[2] In a case where the defendant was prosecuted for violating the former Specialized Credit Financial Business Act by lending funds by means of pretending the sale of goods or the provision of services using the "exclusive-use card for business purchase", the case holding that it is difficult to regard the transaction by the above card as the "transaction by credit card" under Article 70 (2) 2 (a) of the same Act

[1] Article 347 of the Criminal Act / [2] Article 12(1) of the Constitution of the Republic of Korea, Article 1(1) of the Criminal Act, Article 2 subparag. 3 of the former Specialized Credit Finance Business Act (Amended by Act No. 10062, Mar. 12, 2010); Article 70(2)2(a) of the Specialized Credit Finance Business Act; Article 6-5(2)1 of the Enforcement Decree of the Specialized Credit Finance Business Act; Article 7-2(3)5 of the Restriction of Special Taxation Act; Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 98Do3549 delivered on February 12, 1999 (Gong1999Sang, 596)

Defendant

Defendant and Prosecutor

Law Firm member, Attorneys Ha-soo et al.

Seoul High Court Decision 2012No305 decided March 29, 2012

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

In a transaction using an exclusive-use card for business purchase, where a selling company (member member) filed a claim for the payment without notifying that the delivery details sent by a purchasing company (member member) to the credit card company were falsely prepared, and where the credit card company provided services such as those recorded in the delivery details transmitted by the credit card company, and then delivered the money equivalent to the price, if the credit card company did not have any relationship with the selling company, such as refusal of the payment claims based on the false supply details, which would lead to the most false supply details, if the credit card company had known that the delivery details were false, the act of claiming the payment to the credit card company without notifying that it was the most false supply details, constitutes a fraudulent act of fraud, and if the selling company had any criminal intent to commit such fraudulent act, even if it had the intent and ability to pay the payment to the operator at the time, it is established that there was a crime of fraud (see Supreme Court Decision 9Do3549, Feb. 2, 199).

Examining the reasoning of the judgment below in light of the above legal principles, the court below is just in finding the Defendant guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) among the facts charged in this case, and there is no error of law by misunderstanding the legal principles as to deception or fraud in fraud, contrary to the allegations

2. As to the Prosecutor’s ground of appeal

A. Article 70(2)2(a) of the former Specialized Credit Financial Business Act (amended by Act No. 1062, Mar. 12, 2010; hereinafter the same) provides that “A person who makes a loan by means of a credit card transaction or having another person do so in excess of the actual sales amount or by pretending to sell goods or provide services, etc., shall be punished by imprisonment for not more than three years or by a fine not exceeding twenty million won, and Article 2 subparag. 3 of the same Act provides that “A credit card company” means a certificate issued by a credit card company (including a person who engages in credit card business in a foreign country) that repeatedly purchases goods or provides services from credit card merchants or settle matters as determined by the Ordinance of the Prime Minister by presenting it.”

Meanwhile, according to the records, the exclusive-use card for business purchase of this case is a kind of electronic commerce means in which the card company, which purchases goods or services, requests the settlement of purchase price for the specific goods, etc., issued by the card company in accordance with an agreement with the card number issued by the card company, and the purchasing company later pays the purchase price to the card company, and the purchasing company pays the settlement price, fees, etc., later. It is not a real card such as a general credit card, but a credit card number that allows the purchasing company to pay the purchase price under the card transaction agreement.

B. Of the facts charged in this case, the violation of Article 70 (2) 2 (a) of the former Specialized Credit Finance Business Act is a violation of Article 70 (2) 2 (a) of the former Specialized Credit Finance Business Act by granting financing by means of pretending the sale of goods or the provision of services on the premise that the above exclusive-use card for business purchase constitutes

C. However, according to the principle of no crime without the law, the interpretation of penal provisions should be strict, and it is not permissible to excessively expand or analogically interpret the meaning of the explicit penal provisions to the disadvantage of the defendant. In light of this, it is difficult to view the transaction by the exclusive-use card for corporate purchase as constituting a transaction by credit card under Article 70 (2) 2 (a) of the former Specialized Credit Finance Business Act.

1) The exclusive-use card for business purchase of this case does not issue a “credit card” under Article 2 subparag. 3 of the former Specialized Credit Financial Business Act, but is limited to a card number available to a purchasing enterprise, and its transaction method does not require a purchasing enterprise to issue the exclusive-use card for business purchase owned by it. If a purchasing enterprise notifies a purchasing company of the purchase through the Internet, etc., it is nothing more than referring to the means in which the credit card company pays the price for the goods sold by it.

2) A purchasing enterprise is not able to engage in a transaction with all selling enterprises which entered into a franchise agreement with a credit card company, but can engage in a transaction using the exclusive-use card for business use only between the designated selling enterprises and the designated selling enterprises. Therefore, it is difficult to view the selling enterprise as the same as the general credit card transaction.

3) The exclusive-use card for business purchase is introduced as a means of payment in place of bills to improve the problems of the bill system. Unlike the credit card members issued for general consumers, a purchasing enterprise, unlike the credit card members, has to provide separate security or guarantee to the credit card company, and there is a risk of undermining credit transaction order by providing funds by pretending transactions with the exclusive-use card for business purchase, etc. Therefore, it cannot be deemed a sufficient basis for the expanded interpretation or analogical application of penal laws.

4) Article 7-2 (3) 5 of the Restriction of Special Taxation Act provides that "a credit card or debit card issued by a credit card company under the Specialized Credit Financial Business Act to pay purchase prices cannot be used by the purchasing company, and it is issued only for the purpose of paying purchase prices to the purchasing company, selling company, and credit card company, etc. under a contract between the purchasing company, etc.," and Article 6-5 (2) 1 of the former Enforcement Decree of the Specialized Credit Financial Business Act (wholly amended by Presidential Decree No. 22151, May 4, 2010) provides that a credit card company shall be deemed as a type of "credit card or debit card" under the Specialized Credit Financial Business Act. However, Article 6-5 (2) 1 of the former Enforcement Decree of the Specialized Credit Financial Business Act (wholly amended by Presidential Decree No. 22151, May 4, 2010) limits the average balance of the credit incurred by financing to credit card holders, but it shall be excluded from such limited amount."

D. Therefore, the court below is just in maintaining the judgment of the court of first instance which acquitted the defendant on the violation of the Specialized Credit Financial Business Act among the facts charged in this case, on the ground that there is no proof of facts constituting the crime, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles as to Article 70 (2) 2

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)