신용카드부정사용죄에서 ʻ기망하거나 공갈하여 취득한 신용카드ʼ의 의미와 그 해석론적 근거에 대한 재검토

Abstract

Recently, the Supreme Court held that ‘credit card or debit card obtained by deception or extortion’ means ‘a credit card or debit card obtained from another person by means of deception or extortion’ and should therefore be interpreted as ‘a credit card that has been obtained by deceiving or extorting the owner or occupier of the credit card or debit card and the right to dispose of it has been effectively obtained against his or her free will[new interpretation]’, thus presenting a new interpretation of the meaning of the phrase that differs from the previous interpretation[old interpretation]. In reaching this interpretation, the Supreme Court provided the principle of interpretation as its justificatory ground, which states that when interpreting laws, it is possible to interpret a text differently from its ordinary meaning by using teleological, systematic, and logical interpretative methods, but if the text itself consists of relatively clear concepts, the result of interpretation based on textualism should prevail in principle and other interpretative methods should be avoided or limited. This interpretative principle seems to be put forward from a position that emphasizes legal stability as an interpretative principle to ensure that when the meaning of the text is clear, the teleological interpretation of the text in consideration of the legally protected goods and the legislative purpose does not go beyond the limits of the possible meaning of the text. In accordance with the Supreme Court’s new interpretation, this paper concluded that the Court’s previous ruling on the ‘amusementpub extortion case’ was also valid in its conclusion, and that it was an ‘exceptional case’ in which there was deception and extortion in obtaining the card but no ‘consent to use of the card’; and that there was no problem in viewing this kind of cards obtained from the exceptional case as ‘a credit card obtained by deceiving or extorting the owner or occupier of the credit card to the exclusion of the his or her free will’ and the right of disposal of which from the owner or occupier was effectively obtained in accordance with the Supreme Court’s changed precedent on the act of disposal as the elements of the crime of fraud. The paper also pointed out that under the precedent prior to the change of doctrine on the dispositive act requirement, the offense of credit card fraud could not be established to the absence of the relevant elements of the crime. This may seem counterintuitive, but under Supreme Court’s precedent, the offense of credit card fraud could not be established according to the principle of legality because the defect in the punishment was legally unavoidable. However, it follows that the change in the precedent on the act of disposal as the elements of the crime of fraud can be assessed as overcoming this defect in the punishment.