THE POS (POINT OF SALE) USURY
3.07.2019 | Global Legal Matters | 1803
THE POS
(POINT OF SALE) USURY
One of the types of crime created by the
developing technology is “ The Pos Usury”. The usury which is regulated under the article
241 of Turkish Penal Code as one of the crimes, is considered as a serious fact
for both the society and the state. In the Turkish Penal Code no. 5237, Article
241 of the crimes against society, usury: “A person who lends money to someone else to
earn earnings is sentenced to imprisonment for two to five years and to a fine
of up to five thousand days un.” arranged in the form of. Usury crime is now being handled by new
methods along with developing technology. Since providing immediate risk free
interest plays a major role in the POS usury, this method became one of the
most favored method of usury. What we call POS usury is different from normal
usury . T he
people who use usury services withdraw money from the credit card of the debtor
by showing it as a real sale and in return they lend money to the people in
cash. In this way, usurer secure their
receivables (by withdrawing money from the credit card of the borrower) and in
return, lend money in cash. The
process of lending is as follows; the pawn shop (apparently the person selling
the goods) shoots from the credit card with POS device, lending money in cash
and shows that a real exchange of goods or services has been made in exchange
for the shooting. In fact, even though there is no sale
of goods, it is shown as a sale of goods and the cardholder is given a small
amount of money from the sale price of the goods. In
order to avoid paying an additional VAT in these transactions, especially those
who sell airtime minutes and sell gold are preferred. However, despite the fact that there is a
possibility to withdraw cash from ATMs with a credit card, due to the interest
received by the banks in return and the commission, the POS usurer is used. There are borrowers and lenders in normal
usury. In the POS usury, the bank, which indirectly includes the credit card,
is included in this bilateral relationship.
Legal
Evaluation In Terms Of Criminal Law
It is
controversial whether POS usury comply with the “typicism” of the usury regulated in Article 241 of The Turkish
Penal Code. Article 241 of The Turkish Penal Code, “ lending
money” is required in terms of usury crime. Although we can not directly say the existence
of the loan relationship, the credit card is used as a tool to provide a gain
in return for interest. Some
views in the doctrine acknowledgment that this action by the POS device
establishes a crime of usury in the sense of Article 241 of the Turkish Penal
Code.
However, there are some opinions that
the credit card processing should be regulated as an aggravating reason. On the
other hand, by referring to the law “principle
of legitiy”, there are also opinions expressing that the usury process
using credit cards is clearly defined in Article 241 of the Turkish Penal Code.
Another view that is accepted in the doctrine is to determine whether or not
the POS usury has been processed, whether there is a loan agreement between the
parties and whether it is possible to disposal on the borrowed money area. Accordingly, if we can say that there is a
lending agreement in the relationship established between the parties and the
borrower has the opportunity to disposal, then a POS usury crime will occur. The Supreme Court of Appeals acknowledges that
this crime can be processed by withdrawing a credit card from the POS device.
The Supreme Court of Appeals dated 5. CD 29.04.2013, 2012/7317 E. and 2013/3989
K, 5. CD, dated 28.02.2013 2012/3811 E. ve 2013/1486 K, 5. CD, dated 14.01.2013
2012/11217 E. ve 2013/325 K as can be seen from the decision made by
the Court of Cassation's opinion that the crime of usury can be processed by
withdrawing credit card from the POS device.
Our
Opinion:
The usury processed by credit card complies with Article 241 of the Turkish Penal Code. Although the credit card is used as a tool in the crime, the offender lends money. The lending money is based on a collusion sales contract. Although there is a contract in sight, the intention of the parties is to provide a certain amount of lending money with interest. Therefore, it cannot be said that the usury crime does not occur because there is no direct lending. Moreover, the addition of this offense to Article 241 of the Turkish Penal Code will serve the “principle of clarity and definiteness.” As a result, it is clear that usury crime has been committed since it is a loan which is given against interest in POS usury.
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