[1] Responsibility for a case where a person obtains a cash loan from an automatic machine using a credit card issued with a false representation in another person's name (=the theft)

[2] Liability for a credit card obtained a credit loan through the ARS telephone service or the Internet, etc. using a credit card issued with the use of another person's name (=Fraud by use of computers, etc.)

[3] The case reversing the judgment of the court below which held that the act of withdrawing cash from an automatic machine using a credit card issued with a false representation of another person's name and the act of obtaining credit loans through ARS telephone services, etc. constitutes a crime of fraud against the card company

[1] In a case where the defendant was issued a credit card by using another person's name, even though the credit card company issued a credit card in the name of the person who was accused of the defendant, and allowed the other defendant to obtain a cash loan (cash service) by inputting the secret number designated by the defendant, the act of receiving a cash loan from an automatic payment machine using a credit card issued in the name of another person is not a comprehensive permission of the credit card company in advance by the credit card company, but a transfer of the cash under its own control by excluding the control against the will of the manager of the automatic payment machine.

[2] The act of acquiring property profits by obtaining credit loans through ARS telephone services or the Internet using a credit card number and its password issued by using another person's name also constitutes an act of obtaining property profits by inputting information without authority into a computer or any other information processing device, and constitutes a crime of fraud by using a computer or any other information processing device.

[3] The case reversing the judgment of the court below which held that the act of withdrawing cash from an automatic machine using a credit card issued with a false representation of another person's name and the act of obtaining credit loans through ARS telephone services, etc. constitutes a crime of fraud against the card company

[1] Article 329 of the Criminal Code / [2] Article 347-2 of the Criminal Code / [3] Articles 329, 347, and 347-2 of the Criminal Code

[1] Supreme Court Decision 2002Do2134 decided Jul. 12, 2002 (Gong2002Ha, 2004)

Defendant

Defendant

Daegu District Court Decision 2006No228 Decided April 25, 2006

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

1. We examine the grounds of appeal on fraud through purchase of credit cards by purchase of credit cards.

Examining the evidence adopted by the court below and the court of first instance maintained by the court below in light of the records, it is proper that the court below found the defendant guilty of each fraud that purchased goods under the name of the non-indicted, and there is no error of law by misunderstanding the facts against the rules of evidence or by misunderstanding the legal principles as to the criminal intent of defraudation in violation of the rules of evidence.

2. The decision shall be made ex officio on the fraud by means of cash withdrawal on credit cards and credit loans;

A. Summary of this part of the facts charged

The summary of this part of the facts charged is as follows: “The defendant was mixed with the wife and the non-indicted on May 21, 1997, and the facts did not obtain the consent or consent on the issuance of a credit card from the non-indicted, and the defendant was about KRW 50 million, and the defendant's debt was about KRW 1 million for each month in the (name omitted of the business) operated by the defendant. Thus, even if using a credit card, the defendant did not have the intent or ability to pay the credit card, the defendant will possess the credit card by gathering the name of the non-indicted in the name of the non-indicted in the name of the non-indicted in the name of the non-indicted in the form of a credit card.”

(1) On February 8, 2002, at the office located in Nam-gu, Daegu-dong (Business Name omitted), one thousand won (1,557,051) was granted a cash loan of KRW 3 million in the ARS using the EL card in the name of the non-indicted in the name of the non-indicted, and from that time until February 28, 2001, the above card was used from February 28, 2001 and received a cash loan of KRW 1,57,051 with the above card and did not repay part of the money, and instead did not repay it over three times, such as the No. 1, 5, and 6 of the Attached List of Crimes No. 8 and paragraph (10).

(2) On October 27, 200, at the office of the above (the name of the business omitted) around October 27, 200, the above (the name of the business omitted) borrowed KRW 2.5 million with the card loan using the Samsung Card in the name of the non-indicted and did not repay KRW 1,664,00 among them, acquire property

(3) Around August 29, 2000, the non-indicted 1,500,000 won was paid by using the foreign exchange card in the name of the non-indicted in Seocho-gu Seoul (hereinafter referred to as Seocho-gu) and the non-indicted 1,50,002 won was not paid from that time to March 13, 2001 through the above card, and the non-indicted 1,50,000 won was loaned by the card three times from that time to March 13, 201, and part of the loan was not paid by the card, such as the Nos. 7 through 9, 11, and 14 of the attached Table of the judgment of the court below, and the non-indicted 7 through 9, 11, and 14 were not paid by the cash payer and acquired property benefits by failing to repay the loan. (The prosecutor shall, in preference, be the crime of using the computer, etc., and the portion of the loan obtained through AR, etc. from the automatic machine, shall be prosecuted.).

B. The judgment of the court below

On the other hand, the first instance court determined that all of the facts charged are recognized based on its adopted evidence that "in the event that a credit card is issued by using a third party's name in conspiracy, such as the above, the credit card company has the authority to use the card by deceiving the third party to take advantage of the third party's name, and accordingly, the specific and individual acts using the credit card (including credit loans through ARS and cash services using an automatic payment machine) by the mother should be understood to constitute fraud against the credit card company comprehensively, and on the other hand, the crime using one credit card that has been issued by gathering the third party can prevent the actual crimes of fraud, larceny, and fraud using the computer can be prevented." Accordingly, the lower court affirmed the first instance court's judgment that found the defendant guilty of each act of cash withdrawal and credit loans through ARS as a fraud.

C. The judgment of this Court

However, this decision of the court below is not acceptable for the following reasons.

In a case where the defendant was issued a credit card by using another person's name, even though the credit card company issued a credit card in the name of the defendant, and in fact allowed the defendant to obtain cash loans (cash services) by inputting the password designated by the defendant, the act of receiving cash loans from an automatic credit card company using a credit card issued in the name of another person is not an act that comprehensively permits the defendant to use the credit card in the name of another person, but an act that uses the credit card in the name of another person to exclude control against the will of the automatic credit card manager, and thus, it constitutes larceny (see Supreme Court Decision 2002Do2134, Jul. 12, 2002). Further, since the credit card company obtained another person's name by using the credit card number and the personal identification number issued by the defendant, and it can be comprehensively permitted to obtain the credit card in the name of another person through the Internet or information processing system without the authority to use the credit card number and the personal identification number obtained by using the automatic credit card in the name of another person, the act of comprehensively obtaining the credit card or information processing.

Therefore, in this case, even if the defendant was issued a credit card using the name of the non-indicted, since the credit card company cannot be deemed to have given the defendant the right to use the credit card in the name of the non-indicted, the defendant's act of withdrawing cash from the automatic payment machine using each credit card is only a crime of larceny against the manager of the automatic payment machine, a crime of fraud by using computers, etc. against the lending financial institution with respect to the act of receiving credit loans using the ARS telephone service, etc., and it cannot be viewed as a fraud against the credit card company.

Nevertheless, the court below erred in the misunderstanding of legal principles as to the liability for a crime by using credit card, which was issued under the name of another person, and thereby adversely affected the judgment, as stated in its reasoning.

3. Scope of reversal

As above, the judgment of the court below which found the defendant guilty of both the act of cash withdrawal and credit loans as fraud and the act of using a computer, etc. shall be reversed as unlawful. The judgment below shall be reversed in its entirety, since the above reversed part shall be deemed to constitute a single fraud by combining the above part of the crime of fraud by purchasing a credit card with the purchase of goods, and each of the crime of forging a private document, the act of uttering of a false investigation document, and the act of acquiring a vehicle by fraud shall be deemed to be concurrent crimes under the former part of Article 37 of the Criminal Act, and the judgment of the court below shall be reversed in its entirety.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)