Turkish Law Blog

The Pos (Point of Sale) Usury

Mehmet Burak Küçükislamoğlu Mehmet Burak Küçükislamoğlu/ Nesil Law Group
07 August, 2019
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One of the types of crime created by the developing technology is “ The Pos Usury”. The usury which is regulated under article 241 of the 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 the technology. Since providing immediate risk-free interest plays a major role in the POS usury, this method became one of the most favored methods of usury. What we call POS usury is different from normal usury. The 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 secures 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 pawnshop (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 complies 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 again 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 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. Lending money is based on a collusion sales contract. Although there is a contract insight, the intention of the parties is to provide a certain amount of lending money with interest. Therefore, it cannot be said that 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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