[1] The standard for determining the intention of unlawful acquisition where another person's property is used without the consent of the possessor

[2] Whether larceny against a credit card is established in a case where a credit card of another person voluntarily withdraws cash from an automated machine and immediately returns it (negative)

[3] In order to establish a crime of violation of Article 70 (1) 3 of the Specialized Credit Finance Business Act, whether a person who acquired a credit card of which the owner or possessor was absent from his possession or who excluded the possession must be punished for conviction (negative)

[1] In cases where the property of another person is used without the consent of the possessor without the permission of the possessor, if the property itself is consumed to the extent that the economic value of the property was considerably consumed or used, and then is dumped in another place other than the original one, or it is in possession of the property for a long time without the return, the intention of unlawful acquisition may be recognized by deeming that the owner has the intention of infringing the ownership or the original right. However, if the use is not so minor that the consumption of the value due to the use can be disregarded, and if the use is the same as the return immediately after the use, the intention of unlawful acquisition cannot be deemed to infringe on the ownership or the original right

[2] A credit card issued by a credit card company is of economic value in that it can be purchased credit by holding it and can be obtained financial convenience, it cannot be deemed that it itself has economic value or it is valuable to be a security representing a specific property right. The credit card company has value as a certificate to receive service from a credit card company by proving that it is a credit card holder through its presentation or injecting it into an automatic cash payment machine. Thus, even if a credit card company withdraws cash from an automatic payment machine, it cannot be said that the credit card itself was consumed as much as the withdrawn deposit amount. Thus, if it was used temporarily and returned immediately, there is no intent to acquire unlawful profits.

[3] Article 70 (1) 3 of the Specialized Credit Financial Business Act provides that a person who uses a lost or stolen credit card shall be punished. Here, a lost or stolen credit card refers to a credit card, which is left away from his/her possession or is excluded from his/her possession against his/her will without being the owner or possessor's intention, and thus, a person who acquires a credit card, who deserts from his/her possession, or who excluded from his/her possession, does not necessarily require a person to be punished for conviction.

[1] Article 329 of the Criminal Act / [2] Article 329 of the Criminal Act, Article 2 subparagraph 3 of the Specialized Credit Finance Business Act, and Article 13 (1) 1 of the Specialized Credit Finance Business Act / [3] Article 70 (1) 3 of the Special

[1] [2] Supreme Court Decision 98Do2642 delivered on November 10, 1998 (Gong1998Ha, 2907) / [1] Supreme Court Decision 84Do311 delivered on April 24, 198 (Gong1984, 951) Supreme Court Decision 87Do1959 delivered on December 8, 198 (Gong198, 306), Supreme Court Decision 92Do118 delivered on April 24, 192 (Gong192, 1771)

Defendant

Prosecutor

Attorney Shin Jin-jin

Seoul District Court Decision 98No11264 delivered on February 9, 1999

The non-guilty part of the judgment of the court below as to the violation of the Specialized Credit Financial Business Act shall be reversed, and that part of the case shall be remanded to the Seoul District Court

The grounds of appeal are examined.

1. As to the ground of appeal on the larceny

In cases where the property of another person is used without the consent of the possessor without permission, if the property itself is consumed or used to a considerable extent of economic value of the property in question, or if the property is dumped in another place other than the original place, or it is occupied for a long time without the return, the intention of unlawful acquisition may be recognized by deeming that it is intended to infringe on the ownership or the principal right. However, it is reasonable to deem that the use is insignificant to the extent that the consumption of the value due to the use can be disregarded, and that if the property is returned immediately after the use, it cannot be said that there is an intention of infringing on the ownership or principal right, and that there is no intention of unlawful acquisition (see, e.g., Supreme Court Decisions 87Do1959, Dec. 8, 197; 92Do118, Apr. 24, 1992).

In addition, a credit card issued by a credit card company is economically valuable in that it can be purchased credit by possession of it and can obtain financial convenience, it cannot be deemed that it itself has economic value or an instrument representing a specific property right, and it has value as a certificate to receive services from a credit card company by means of proving that the credit card holder is a credit card holder through its presentation or by injecting it into an automatic cash payment machine (see Articles 2 subparag. 3 and 13(1)1 of the Specialized Credit Financial Business Act). Thus, even if a credit card company withdraws cash from an automatic cash payment machine, it cannot be deemed that the credit card itself was consumed as much as the deposited deposit amount. Thus, if it was used temporarily and returned immediately, it shall be deemed that there was no intent to obtain unlawful profits (see Supreme Court Decision 98Do2642, Nov. 10, 1998).

According to the reasoning of the judgment of the court below, the court below acknowledged the defendant around 15:00 on March 31, 1998 that he was using the above credit card in the cash payment machine established at the branch office and then put 50,000,000 won in the credit card within the handbag of the victim, even if he was to withdraw cash from the cash payment machine using the credit card, he could not be deemed to have withdrawn the economic value of the credit card itself as well as to have been consumed the deposit amount, and the victim's actual owner, who is the owner of the above shop, was placed in the back of the calculation unit, and he could not be deemed not guilty of this part of the facts charged. In light of the above, the court below found the defendant guilty of this part of the facts charged.

In light of the records and the above legal principles, we affirm the above measures of the court below, and there is no error of law by misunderstanding the legal principles as to larceny, and on the other hand, the court below found the defendant guilty of the charge of larceny of the part that the defendant withdrawn and stolen 500,000 won in cash from the aforementioned victim's credit card payment machine by using the above victim's credit card (Article 8 of the judgment of the court below). Since the charge of larceny of the credit card of this case cannot be changed to the fraud of this case or to the use of convenience facilities under Article 348-2 of the Criminal Act, it cannot be said that the court below did not require the change of indictment. The ground for appeal pointing this out cannot be accepted.

2. As to the ground of appeal on the violation of the Specialized Credit Finance Business Act

Article 70 (1) 3 of the Specialized Credit Financial Business Act provides that a person who uses a lost or stolen credit card shall be punished. Here, a lost or stolen credit card refers to a credit card which deserts his/her possession or is excluded from his/her possession against his/her will without being the owner or possessor's intention, and a person who has acquired or excluded from his/her possession does not necessarily need to be punished for conviction.

According to the facts acknowledged by the court below, since the defendant excluded the possession of the victim of the credit card of this case against the victim's will and withdraws cash from the cash automatic machines by using it, the credit card of this case used by the defendant constitutes a lost or stolen credit card under Article 70 (1) 3 of the Specialized Credit Financial Business Act.

Nevertheless, the court below erred by misapprehending the legal principles as to lost or stolen credit cards under the Act and thereby affecting the conclusion of the judgment, on the grounds that the defendant's illegal use of stolen credit cards cannot be deemed to have been made even if he received cash services using the credit card in this case by the victim. The part of the grounds of appeal assigning this error is with merit.

3. Therefore, the part of the judgment of the court below that acquitted the violation of the Specialized Credit Financial Business Act shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and the prosecutor's remaining appeal shall be dismissed and it is so decided as per Disposition

Justices Jeong Jong-ho (Presiding Justice)