[1] The meaning of "acting for a transaction by credit card" under Article 70 (2) 3 of the Specialized Credit Finance Business Act

[2] The case holding that it is not likely that a bond company's act of making a transaction by credit cards or acting on behalf of credit cards in disguise of the sale of goods or provision of services, etc. under Article 70 (2) 3 of the Specialized Credit Financial Business Act, in case where the bond company received money from the credit card holders by credit card and delivered money according to the amount of such money

[1] "Vicarious execution of a transaction by credit card" under Article 70 (2) 3 of the Specialized Credit Financial Business Act refers to the sale of goods or provision of services, and allowing a settlement agency to settle a transaction by presenting a credit card from a credit card holder.

[2] The case holding that where a bond dealer received money from a credit card holder by credit card holders and delivered money in proportion to the amount, it does not constitute "the pretending the sale of goods or the provision of services, etc." under Article 70 (2) 3 of the Specialized Credit Financial Business Act, and it is not possible for the bond dealer to constitute "transaction by credit card or by proxy of credit card transaction by credit card" under the above provision on the ground that the gold seller cannot be deemed as a bond broker under the Specialized Credit Financial Business Act for the bond dealer.

[1] Article 2 subparagraph 5 of the Specialized Credit Finance Business Act and Article 70 (2) subparagraph 3 of the Specialized Credit Finance Business Act / [2] Article 2 subparagraph 5 of the Specialized Credit Finance Business Act and Article 70 (2) subparagraph 3

Defendant

Defendant

Lee Won-man

Attorney Park Sang-hoon et al.

Seoul District Court Decision 2003Ma1181 delivered on May 15, 2003

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 5,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 40,000 won into one day.

The number of detention days prior to the pronouncement of the judgment below shall be included in the period of detention in the workhouse.

600 copies (No. 1) of 10,00 won seized by the Bank of Korea shall be confiscated.

The provisional payment of the amount equivalent to the above fine shall be ordered.

Of the facts charged in this case, each of the charges is acquitted.

1. Summary of grounds for appeal by the defendant and his defense counsel

(a) misunderstanding of facts;

(1) As to the indication of the intent to offer a bribe

Although the Defendant did not provide 6 million won to a police officer controlling a police officer, the lower court recognized that the Defendant expressed the intent to offer a bribe by 6 pieces of KRW 1 million to a police officer. In so doing, the lower court erred by misapprehending the facts.

(2) As to the violation of the Specialized Credit Finance Business Act

The Defendant merely purchased the credit card from the case in a normal way at the face of the gold with a credit card, but the lower court recognized that the Defendant engaged in a credit card transaction or made a credit card payment by proxy by pretending the sale of the goods. In so doing, the lower court erred by misapprehending the fact.

B. Unreasonable sentencing (defendant and counsel)

The sentence of the court below that sentenced forfeiture of 10 months and 6 million won to a social welfare foundation is too unreasonable in light of the fact that the defendant's profit derived from the crime is only 13 days, and that the defendant's fault reflects his depth and contributed some money, etc.

2. Judgment on the assertion of mistake of facts

A. The point of indication of the intention to offer the bribe as stated in the judgment below

According to the evidence adopted by the court below after lawfully examining the evidence, in particular, in the statement in the Nam Chang-ro, and the Hag-do Preparation, the defendant presented 1,00,000 won fest flives to the police station investigation of the Gangseo-gu Police Station and the Gyeong Chang-ro, which require the defendant to capture the charge of violating the Specialized Credit Finance Business Act and to open a safe to verify what is contained in the safe, and the defendant presented 1,00,000 won flives to the Nam Chang-ro, and "Isk-do not bring about the flives" only once, it can be sufficiently recognized that he expressed his intention of offering a bribe in connection with the police officer's duties

B. Violation of the Specialized Credit Finance Business Act

(1) Summary of this part of the facts charged and the judgment of the court below

The summary of this part of the facts charged is that "the defendant, on February 28, 2003, borrowed 5673,000 won after deducting 6,100,000 won from 10,000 won to 200,000 won to 233,000 won of the Jongno-dong, Jongno-gu, Seoul, 200, "I would like to get a loan" from the K EFF office located in the fourth floor of this building and give a loan to I with the same amount of sales slips as 6,10,00 won," and the court below found the defendant guilty of 206,000 won to 3,000 won through the credit card company No. 2786,00 won as stated in the attached Table No. 11, from February 26, 2003 to March 11, 2003, the court below found the above loan to 200,000 won to 36,000 customers.

(2) The judgment of this Court

(A) Article 70 (2) 3 of the Specialized Credit Financial Business Act applied by the court below provides that a person who makes a transaction by credit cards or makes a loan by credit cards in excess of the actual sales amount or the actual sales amount, or a person who mediates or arranges a transaction by credit cards shall be punished by imprisonment for not more than 3 years or by a fine not exceeding 20 million won. "Acting as an agent for a credit card transaction by credit cards" means a person who sells goods or provides services to a credit card holder, debit card holder, or pre-paid card holder (hereinafter "credit card holder, etc.") through a transaction under a contract with a credit card company, under which the definition of "credit card holder" is defined as "credit card holder, etc." (hereinafter "credit card holder, etc.") pursuant to a contract with the credit card company.

(B) As to the facts charged in this case, even if based on the facts charged, the defendant received money from his customers, such as lectures, and paid money to his members according to the volume of such money. Since the defendant takes the form of purchasing money from his customers, there is no room for the defendant to constitute "the pretending the sale of goods or the provision of services, etc." under Article 70 (2) 3 of the Specialized Credit Financial Business Act, and according to the facts charged, the party who made a transaction with the above customers is not a stock company, and the defendant is not a stock company, and it cannot be deemed that the case is a settlement agency under the Specialized Credit Financial Business Act for the defendant, and there is no room for the defendant to constitute "the transaction by a credit card or acting by proxy for a credit card transaction under the above provision." However, if the defendant purchased the above money from his customers at a price higher than the above sales price and paid the above money to the customer, the defendant did not have any substantial difference between the above defendant and the above company's pre-sale and the above pre-sale agreement.

(C) Thus, although the facts charged in this part of the charges should be pronounced not guilty on the ground that it does not constitute a crime or there is no proof of facts constituting a crime, the court below found otherwise guilty or erred by misapprehending the legal principles of the Specialized Credit Financial Business Act. Therefore, the ground for appeal pointing this out has merit, and the court below rendered a single sentence on the ground that the facts charged in this part and the remaining facts charged constitute concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the judgment below

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts

Defendant

At around 15:10 on March 11, 2003, 200, the Hanjin-dong 23.203, the defendant, operated by Jongno-gu Seoul Jongno-dong 23.10, expressed the police officer's intent to offer a bribe in relation to the police officer's duties by stating that the office requires the defendant to open a safe in order to detect the suspicion of violating the Specialized Credit Financial Business Act against the defendant and to verify what is contained in the safe, and on the other side of the Gyeongmun-dong, the investigation of the Gangseo Police Station and the 1 million won amount of the 1 million Won Won-do Won-dong 203.

Summary of Evidence

1. Partial statement of the defendant;

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution;

1. A written statement of the development of South Chang-ro and Austria;

1. Seizure records;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 133(1) and 129 (Selection of Fine)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Confiscation;

Article 134 (former part) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Parts of innocence

Among the facts charged in this case, the summary of each violation of the Specialized Credit Finance Business Act is the same as before. As seen in the grounds for reversal, the above facts charged constitute a case where there is no proof of facts constituting a crime, and thus, the judgment of innocence is rendered under the latter part of

Judges Jeong Young-chul (Presiding Judge)