2012No305 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), Credit

Violations of the Specialized Financial Business Act

OO

Defendant and Prosecutor

○ ○

Law Firm ○○, Attorneys ○○○

Incheon District Court Decision 201Gohap838 Decided January 5, 2012

March 29, 2012

All appeals filed by the defendant and prosecutor are dismissed.

1. Judgment on the Defendant’s assertion of misapprehension of the legal principle

A. Summary of the defendant's assertion

The nature of the exclusive-use card system for business purchase is substantially close to the "loan for business operation", and the defendant is the defendant.

The Ministry of Finance and Economy, through this, has the intent and ability to settle the loan, and even if so, the Ministry of Finance and Economy may sell the loan.

Degnating the amount greater than the actual transaction amount as the corporate purchase card even if it was paid by deception.

such act and property damage, or the possibility of causing such damage, shall not be deemed to have been

there may be no causal relationship.

(b) System for exclusive-use card for business;

The exclusive-use card system for business purchase is a purchasing enterprise (member) credit card issued by this card company.

of the purchase price of the goods purchased from the selling enterprise (franchiseS) through the issuance of the goods or card numbering shall be settled; and

The sales enterprise shall receive the price of the goods from the card company, and at this time the sales enterprise shall be from the card company.

Fees for the nature of the sales charge shall be borne when the sales proceeds are received.

in this respect, the borrower is a purchasing enterprise, and in this respect, it is the same as the corporate purchase fund loan.

in this respect, financial expenses are borne by the selling company, and the credit sales bonds are covered by the electronic method.

It is the same as the loan system and the commercial bill discount system.

Procedures for the processing of transactions under the exclusive-use card for business purchase, 1 Sale enterprises (franchises) shall be a purchasing enterprise (the Association)

(2) A purchasing enterprise shall settle the purchase price with the exclusive-use card for business purchase.

(3) A purchasing enterprise shall transmit the details of the supply to the card company, and 4 the card company shall request the sales company to

(5) A purchasing enterprise shall pay the sales proceeds after deducting the fees pursuant to this subsection. (5) A purchasing enterprise shall hold a card on the designated settlement date2)

The order of payment of the purchase price for the company is in progress.

An enterprise is a credit card transaction based on the Internet.

It is very similar to the use of online credit cards in electronic commerce between the consumer and the consumer.

C. Therefore, with respect to the exclusive-use card for business purchase, the legal issues of credit card transactions are basically invoked.

(2) may be deemed to have been granted.

C. Determination

Fraud as a requirement for fraud shall be observed by each other in the wide range of property transaction relationship.

It refers to any affirmative or passive act that lacks good faith and good faith, and reflects

d. The other party is not required to be falsely labeled as to the essential part of the d.

(1) The basis of the judgment to require the actor to perform an act of disposal of the property that the actor wishes to do.

Inasmuch as it is sufficient to establish facts, the counter-party to the transaction shall be notified of certain circumstances.

such transaction, if it is deemed that the transaction would not take place if such transaction had been made.

person who receives property due to such reason shall be entitled to the other party in advance in accordance with the principle of good faith.

There is a duty to notify the circumstances, and even if such notice has not been given, such notice shall be given.

It constitutes a crime of fraud by deceiving the other party by impliedizing the facts to be notified.

In transactions using an exclusive-use card for business purchase, the amount of money from a sales company (affiliated store)

‘The details of delivery sent to this card company' at the time of receipt by the purchasing company (member).

(1) The credit card company has filed a claim for the payment without notice, and the credit card company has filed a claim for the payment, as stated in "the details of the delivered delivery."

(1) The amount of money equivalent to the sales company's price, provided that the sales company actually rendered the service

(2) If the card company issues the notice, the notice shall not be deemed to have been issued by the card company, and the notice shall not be

If it had known that the delivery details were false, such as the refusal of the request for the purchase price under paragraph (1).

In the event that it is recognized that the selling enterprise has not paid the price, the selling enterprise shall not provide the service.

an act of claiming the price to a credit card company without notifying that it is the most false delivery.

act of fraud, which constitutes deception as an act of fraud, and such deception committed by the buyer, etc., shall be deemed to constitute deception.

If there is a criminal intent, the intent and ability of the operator to pay the credit card use fee to the operator at that time.

Even if there was a crime of fraud, it is recognized that there was a crime of fraud (Supreme Court).

February 12, 1999, see Supreme Court Decision 98Do3549 delivered on February 12, 199

In light of the above legal principles, this case is examined. Do governor Do governor decided the victim corporation (hereinafter, etc.)

section 2 of the special agreement on the member of the purchase-only card for the company name of which the indication of the corporation is omitted)

"A card can be used only at the time of purchase of goods or services at a separately established enterprise."

The victim company has limited the payment of false settlement through an appropriate inspection of propriety.

not to take any action such as, but not to suspend transactions that prevent the use of the next card;

In other words, if the delivery details were to be known that they were false, the payment of the price shall not be made to the (franchise 4) if it had been known that they were false.

It is recognized that the Defendant actually requested to be contacted by Dog. Therefore, the Defendant

of 749, 155, 000 won in total; however, the greater amount is available

As if the payment was made at the contact cost, the sum as shown in the Schedule of Crimes No. 1 of the judgment below

1. Settlement process of settlement of an amount equivalent to KRW 546, 030, 600 using the exclusive-use card for business purchase of the victim company;

As if they were normal sales, the actual business owner is the victim company's sales claim

such act constitutes a deception as a commission of fraud, and such act constitutes a deception against the defendant.

If there is a criminal intent to commit a fraudulent act, the intent and ability to pay the fee for the use of the card at the time.

Even if there was a crime of fraud, it is recognized that there was a crime of fraud, and that property damage or damage occurred.

A crime of fraud is established without relation to the existence of possibility of fraud. Ultimately, the judgment of the court below to the same effect.

It is justified and there is a misapprehension of the legal principles as to deception and causation, as alleged in the grounds of appeal.

There is no law.

2. Judgment on the misapprehension of the legal principle by the prosecutor

A. Prosecutor’s assertion

According to the provisions of Article 7-2(3)(5) of the Restriction of Special Taxation Act, dedicated car for corporate purchase of this case

ipso facto, required for the former Specialized Credit Finance Business Act (wholly amended by Act No. 10062, Mar. 12, 2010)

(b) is included in the credit card referred to in this section, except in the following cases:

and, accordingly, the actual sales amount by the defendant or the actual sales of the goods or the provision of services

act of making a transaction by credit cards in excess of this limit shall be prohibited under Article 70(2)2 (a) of the former Specialized Credit Finance Business

credit in which the sale of goods or the provision of services, etc. is pretended, or in which the actual amount of sales exceeds;

The act of trading with a card or having another person act on behalf of the card constitutes a "act of trading with a card".

(b) Relevant Acts;

○ former Specialized Credit Financial Business Act (Law No. 5374, Aug. 28, 1997; Act No. 5374, Mar. 30, 2002

681 (amended by Act No. 6681)

Article 70 (2) A person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than 3 years or by a fine not exceeding 20 million won:

(2) shall be punished.

3. Credit cards in excess of the actual sales amount or actual sales amount of goods or services.

A person who issues sales slips and provides financing, or a person who mediates or arranges such sales slips.

○ former Specialized Credit Finance Business Act (amended by Act No. 6681 of March 30, 2002, and amended by Act No. 6681 of May 31, 2005)

7531 (amended by Act No. 7531) 5

Article 70 (Penal Provisions) (2) A person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than three years or by imprisonment for not more than 20 million won:

shall be subject to a fine of

3. A creditcar in excess of the actual amount of sales of goods or provision of services, etc. or actual sales;

d. A person who makes a transaction by credit cards or makes a transaction by credit cards to be made by proxy; or

(1) A person who acts as a broker or intermediary;

○ former Specialized Credit Financial Business Act (wholly amended by Act No. 10062, Mar. 12, 2010)

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

3. The term "credit card column" means a purchase of goods repeatedly by presenting it to credit card merchants;

A credit card company (foreign country) as a certificate that can receive services or settle matters prescribed by Ordinance of the Prime Minister.

a credit card business (including a person engaged in a credit card business).

Article 70 (Penal Provisions) (2) Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than three years or by 20,000 won:

Any person shall be punished by a fine not exceeding

2. A person who lends a loan through any of the following acts: or

A person who mediates and arranges this;

(a) A creditcar that makes a misrepresentation on the sale of goods or provision of services, etc., or exceeds an actual sales amount;

D Trading or having another person do so by proxy.

○ former Restriction of Special Taxation Act (amended by Act No. 6273, Oct. 21, 2000; Act No. 6273, Aug. 14, 2001)

Article 7-2 (2) 5.

An exclusive-use card for business purchase means that a purchasing enterprise makes a Gu from a credit card company.

A credit card issued for the purpose of paying each price.

○ Article 7-2 (3) of the Restriction of Special Taxation Act 5

An exclusive-use card for business purchase shall be paid by a purchasing enterprise under the Specialized Credit Financial Business Act.

A credit card or debit card merchant issued by a credit card company in general shall be the credit card merchant.

not to be used by a purchasing enterprise, a selling enterprise, or a credit card company, and

only for the purpose of paying the purchase price.

C. Determination

The principle of no crime without the law protects individual freedom and rights from arbitrary exercise of state punishment rights.

to determine crimes and penalties by law. In light of such intent, punishment shall be imposed.

The interpretation of penalty law shall be strict, and it is disadvantageous to the defendant to the meaning of the express penal law.

It is against the principle of no punishment without the law to excessively or analogically interpret it.

shall not be permitted as such.

In accordance with these legal principles, the following circumstances recognized by the records of this case are non-existent.

In order to be recognized as "credit card" under Article 2 (3) of the former Specialized Credit Financial Business Act.

of this case is required to issue a certificate, so the old Specialized Credit Financial Business Act is required to do so.

It is difficult to see that it constitutes a credit card as stipulated in subparagraph 3 of Article 2. Therefore, the original judgment to the same purport

The decision is justified and there is a misapprehension of the legal principles on the interpretation of the concept of "credit card" as alleged in the grounds of appeal.

there is no error of law in the law.

① In this case, the real card for exclusive-use card used by the defendant is not issued.

A purchasing enterprise (member, member of YUD) shall create only the card number for each selling enterprise (member, member, member, etc.).

In other words, transactions and settlement have been made through card numbers without presenting the actual card.

(2) Article 7-2 (2) 5 of the Restriction of Special Taxation Act newly enacted by Act No. 6273 of October 21, 2000

(a) The term “exclusive card for business purchase” means a credit card company incorporated under the Specialized Credit Financial Business Act.

credit card issued for the purpose of paying the purchase price for the credit card;

The former Specialized Credit Finance Business Act (Law No. 5374, Aug. 28, 1997) enacted on March 30, 2002

Article 70(2)(3) of the Act provides that sales slips are still issued.

It was based on the premise that the credit card (issuance of a certificate) in the form is used.

(3) In cases of electronic commerce via the Internet, etc. thereafter, even without preparing sales slips.

Credit extended by Act No. 7531 of May 31, 2005, taking into account the fact that credit card transactions are conducted.

The Specialized Financial Business Act provides a card for the illegal use of credit cards regardless of whether or not to issue sales slips.

In the future, only the establishment of a new law makes it possible to punish it. The reason why such an amendment was made is that it was made.

the concept of ‘credit card' is changed and the scope of credit card subject to punishment is expanded.

shall not be deemed to have been approved.

(4) A purchasing enterprise in the corporate card for business purchase under Article 7-2 (3) 5 of the Restriction of Special Taxation Act.

It shall be issued by credit card companies under the Specialized Credit Financial Business Act to pay the purchase price.

credit card "," but this credit card is only the card number as in this case.

may be granted in the form of a certificate and may be issued. The exclusive-use card for corporate purchase may be issued.

Pursuant to Article 70 (2) 2 (a) of the former Specialized Credit Finance Business Act due to periodic use

the credit card in the form of "credit card issued" is used unlawfully as the exclusive-use card for business purchase.

It shall be interpreted as limited in accordance with the principle of strict interpretation of penal law.

3. Conclusion

If so, the appeal by the defendant and the prosecutor is without merit and all of them are dismissed.

Judge Maximum Hong-man

Judges Nown Korea

Judges Dok-woo

1) The time when the sale proceeds are paid is the date when the selling company (affiliated store) requests (Evidence Record 207 pages).

2) The Defendant: the amount of goods settled 90 days after the date on which the payment was made with the exclusive-use card for business purchase, requested by the victim corporation

(Evidence Record 207 pages)

3) Evidence records 332 to 333 pages

4) The Defendant borrowed the name from the dedicated unit and operated the name of the dedicated unit.

5) The reasons for the amendment of the National Assembly are as follows: “Unauthorizedly financing by credit cards (illegal use of credit cards)”.

It is possible to issue sales slips for cards, but in the case of electronic commerce through the Internet, etc., it is possible to punish them.

Considering that a credit card transaction takes place without issuing sales slips, the credit card fraud will be used in the future.

No matter whether sales slips have been issued or not can be punished only by the establishment of card transactions.