"Card Kkang Fraud, Victims Are Card Companies"

[Ruling Result]

The Supreme Court overturned and remanded the case in a computer fraud case involving obtaining financial benefits under another person's name through the so-called ‘card kkang’ method, stating that the lower court's application of the exemption from punishment under the rule of relatives without clearly identifying the victim was a legal error.

The Supreme Court Criminal Division 1 (Presiding Justice No Tae-ak) overturned the lower court's ruling and sent the case back to Changwon District Court in the appeal trial of Mr. A, who was charged with computer fraud (Case No. 2024Do19846).

[Facts and Lower Court Judgments]

In December 2021, Mr. A used the personal information, account number, and card password of his sister-in-law B, with whom he lived in an apartment in Cheongju, Chungbuk, without her consent, to receive cash advances through the so-called ‘card kkang’ method on B’s mobile phone, obtaining a total financial benefit of about 77 million KRW by February 2022. He was prosecuted for computer fraud.

The first trial court found all charges including computer fraud, fraud, and embezzlement guilty and sentenced Mr. A to 1 year and 8 months in prison. However, the appellate court ruled that "B, the victim named, is a cohabiting relative of the defendant and cannot be punished under the exemption rule for relatives," exempting the sentence for computer fraud and sentencing him to 1 year and 5 months in prison.

Meanwhile, Article 328, Paragraph 1 of the Criminal Act, which stipulates the exemption rule for relatives, allows exemption from punishment for property crimes among direct blood relatives, spouses, and cohabiting relatives. The Constitutional Court ruled this provision unconstitutional in June 2024 and set the revision deadline as December 31, 2025.

[Issue]

Who is the victim in the computer fraud crime using another person's credit card, and whether the constitutional court's unconstitutionality decision on Article 328, Paragraph 1 of the Criminal Act regarding exemption from punishment under the rule of relatives has retroactive effect.

[Supreme Court Judgment]

The Supreme Court found problems with the appellate court's judgment. The Court stated, "Although the prosecutor's indictment and the attached crime list do not specify who the victim is, the list prominently includes card companies such as Shinhan Card, Hana Card, K Bank, and Samsung Card, and the investigation report states that ‘the actual victim of the computer fraud crime is the cardholder, but the direct victims are the card companies or financial institutions, making the application of the exemption rule for relatives difficult.’"

It continued, "When the facts of the indictment are unclear or the identification of the victim is an issue, the application of the exemption rule for relatives may vary depending on the victim. Therefore, the lower court should have requested clarification from the prosecutor under Article 141 of the Criminal Procedure Rules and made a judgment after clearly identifying the victim. The lower court erred in law and failed to conduct necessary investigations by assuming that the prosecutor prosecuted B as the victim and exempting the sentence," the Court ruled.

Regarding the retroactive effect of the unconstitutionality decision, the Court explained, "The exceptional retroactive application of an unconstitutional ruling applies only to substantive laws that form the basis for criminal punishment. Even if it is a law related to punishment, if it is a provision that exempts punishment, retroactive application of the unconstitutional ruling may cause disadvantages to those who were not punished in the past." It added, "Since the exemption rule for relatives is a provision that exempts punishment, retroactive application of the unconstitutional ruling would cause criminal disadvantages to those who had their sentences exempted. Therefore, this provision loses its effect from the date the unconstitutionality decision is announced."

Reporter An Jaemyung, Legal Newspaper

※This article is based on content supplied by Law Times.