[1] The meaning of deception as a requirement for fraud, and the case where the duty of disclosure is recognized by law

[2] Whether the act of a credit card merchant to submit a false sales slip which pretends to provide services to the credit card company constitutes deception (affirmative)

[1] The deception as a requirement for fraud refers to all affirmative and passive acts that have the duty of good faith and sincerity to each other in the transactional relationship. It is sufficient to say that it does not necessarily require false indication as to the important part of a juristic act, and it is sufficient to establish the basis of judgment for an actor to make a disposition of property which the other party wishes by omitting the other party into mistake. Therefore, in a case where it is acknowledged that the other party to the transaction would not have been notified of certain circumstances, the party to the transaction would have a duty to notify the other party of such circumstances in advance in accordance with the principle of good faith. Nevertheless, the failure to notify the other party of the fact that the other party would not have been notified, thereby deceiving the other party, thereby constituting fraud.

[2] In case where a credit card merchant, at the time of receiving money from a credit card company, filed a claim for payment by submitting sales slips to the credit card company without notifying that such sales slips were prepared by pretending to provide services, and the credit card company issued money equivalent to the price to that of the member company because it was stated in the sales slips, if it is recognized that if the credit card company had known that the sales slips were false, it would be possible to refuse to pay the purchase price claim based on the sales slips, such as the false representation of the service provided by the member company, the act of the member company's filing a claim with the credit card company for payment without notifying the member company of the false fact that the member company had known that the sales slips were false, constitutes a fraudulent act as a crime of fraud, and the act of the member company's filing a claim for payment with the credit card company without notifying that the member company was the false sales slips, and even if it had intent and ability to pay the credit card use price to the

[1] Article 347 (1) of the Criminal Code / [2] Article 347 (1) of the Criminal Code

[1] Supreme Court Decision 86Do1912 delivered on October 13, 1987 (Gong1987, 1739), Supreme Court Decision 95Do707 delivered on September 15, 1995 (Gong1995Ha, 347), Supreme Court Decision 95Do2828 delivered on February 27, 1996 (Gong196Sang, 1183), Supreme Court Decision 96Do1081 delivered on July 30, 1996 (Gong196Ha, 2756), Supreme Court Decision 98Do231 delivered on April 14, 1998 (Gong198Sang, 1423), Supreme Court Decision 97Do3989 delivered on April 24, 1998, Supreme Court Decision 97Do3989 delivered on September 195, 195 (Gong1996539).

Defendant

Prosecutor

Jeonju District Court Decision 98No477 delivered on September 25, 1998

The judgment below is reversed. The case is remanded to the Jeonju District Court Panel Division.

The grounds of appeal are examined.

1. As to the violation of the Credit Card Business Act

Upon examining the reasoning of the judgment below in light of the records, Article 25 (3) 3 of the former Credit Card Business Act (amended by Act No. 5374 of Aug. 28, 1997 and repealed by Act No. 5374 of Jan. 1, 1998) shall be interpreted only to the effect that where a credit card merchant prepares and uses sales slips in the name of another credit card merchant among acts violating Article 15 (4) of the same Act, the person who prepares the sales slips and the person who lends the franchise store to prepare them shall be punished. Thus, as in the facts charged in the case of this case, if the defendant prepares and uses false sales slips without providing services in the name of the credit card merchant he/she manages, it shall not be punished, and it is just to maintain the first instance court's decision that acquitted him/her, and there is no error in the misapprehension of legal principles as to Article 25 (3) 3 of the former Credit Card Business Act. The grounds for appeal on this point shall not be accepted.

2. As to fraud

According to the reasoning of the judgment of the court below, the court below found that "the defendant prepared a false sales slip at around July 17, 1997 in the part of the defendant's management located in Gunsan, which is a credit card merchant, and submitted it to the credit card company and obtained it an amount of KRW 1.6 million in total from the credit card company and received it in the name of the non-indicted 1,60,000,000,000 from the non-indicted 1,000,000,000 won from the non-indicted 1,000,000,000 won from the non-indicted 1,000,000 won from the non-indicted 1,000,000 won from the non-indicted 1,000,000 won from the non-indicted 1,000 won, and there was no intention to obtain the sales slip from the victim to obtain it, and there was no possibility to obtain it from the victim's intention to obtain it."

However, deception as a requirement for fraud refers to any affirmative or passive act that widely lacks the fiduciary duty and good faith to each other in a transactional relationship (see, e.g., Supreme Court Decisions 86Do1912, Oct. 13, 1987; 96Do1081, Jul. 30, 1996). It does not necessarily require false indication as to the important part of a juristic act, and it is sufficient to say that it is the basis of judgment for an actor to make a disposition of property desired by an actor by omitting the other party in mistake (see, e.g., Supreme Court Decisions 95Do707, Sept. 15, 1995; 95Do2828, Feb. 27, 1996). If it is acknowledged that the other party to a transaction would not have been notified of a certain circumstance, the other party to the transaction should be notified of such fact in advance, regardless of the principle of good faith, and thus, it constitutes a crime of fraud.

According to the records, at the time of receiving money from a credit card company, the defendant filed a claim for the payment by submitting the sales slip to the credit card company without notifying that the payment was made by pretending to provide the service, and the credit card company stated that it actually provided the service as stated in the sales slip of this case, and issued the defendant money equivalent to the price. In such a case, if the credit card company had known that the sales slip was false, such as that it could refuse the payment claim based on the sales slip, which is the most false content of the service provided by the merchant, if the defendant had known that the sales slip was false, then the defendant did not pay the payment to the credit card company, the defendant's act of claiming the payment by submitting the sales slip to the credit card company without notifying that the sales slip of the false content of the service provided is the act of fraud, and if the defendant had a criminal intent to commit such deception, it can be recognized that there was a crime of fraud even if the defendant had intent and ability to pay the payment by the credit card.

Nevertheless, the court below found the defendant not guilty of the conjunctive charges of this case solely on the grounds as stated in its holding, in light of the fact that Article 15 (4) of the former Credit Card Business Act provides that the credit card merchant shall not prepare sales slips by pretending that the credit card company engaged in a transaction by credit card without selling goods or providing services (the former Credit Card Business Act is one of the matters to be observed by the credit card merchant and that the credit card merchant shall not make sales slips by pretending that the credit card merchant engaged in a transaction by credit card without any sales of goods or providing services) if the credit card company knew that the sales slips were made by pretending to provide services. In this case, the court below found the defendant not guilty of the conjunctive charges of this case. In so determining, the court below erred by misapprehending the legal principles on fraud fraud as pointed out in the grounds of appeal. The part contained in the grounds of appeal on this point is with merit.

3. Therefore, the part of the judgment of the court below concerning the conjunctive charges cannot be reversed, and the part concerning the primary charges with the same body can be reversed. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)