CONTENTS
- 1. Participation in Voice Phishing, the Detailed Circumstances?
- - Participation in Voice Phishing, the Relevant Statutes?
- 2. Participation in Voice Phishing, the Lower Courts' Determination?
- 3. Participation in Voice Phishing, the Supreme Court's Determination?
- 4. Participation in Voice Phishing, Daeryun's Strategy?
1. Participation in Voice Phishing, the Detailed Circumstances?
The defendant who stood trial on the charge of participating in voice phishing was A, a courier deliveryman.
A received an offer from a member of a voice phishing organization: "We will send you SIM cards and a repeater by parcel; if you do the work of inserting the SIM cards into the repeater and removing them, we will pay you a daily wage."
At a goshiwon and at his residence in Daegu, A installed a caller-number-altering repeater and a router, connected them to the internet network, and then managed 47 numbers by inserting cell phone SIM chips into the repeater and moving them from one slot to another, thereby helping members of the voice phishing organization place calls or send text messages to victims using the altered numbers.
In return for this work, A received between 3,000 won and 80,000 won per instance, receiving a total of 1,127,000 won.
A stated that, because the organization members had explained that this was work needed for the exchange of Bitcoin, he had thought it was not illegal.
The prosecution, however, regarded A as an accomplice who had worked for compensation while knowing that he was assisting the voice phishing offense, and it indicted A.
Participation in Voice Phishing, the Relevant Statutes?
🔗Voice phishing If a person manipulated telephone numbers in order to make voice phishing victims perceive that a call from a voice phishing telephone agent was a 'domestic call' rather than an international call, that conduct constitutes a 'violation of the Telecommunications Business Act' and is subject to criminal punishment.
▣ Article 30 of the Telecommunications Business Act (Restriction on Use by Others)
No person shall use telecommunications services provided by a telecommunications business operator to relay another person's communications or to provide such services for another person's communications use.
Except in exceptional cases such as a national emergency, the abuse of telecommunications services is prohibited, and a violation is punishable under the same Act by imprisonment for not more than one year or a fine of not more than 50 million won.
The Constitutional Court has held with respect to the meaning of this provision that "this is a provision intended to prevent conduct that, without legitimate authority, uses telecommunications services provided by another telecommunications business operator to provide services identical or similar to those the person is provided with, thereby causing disruption to the business of the telecommunications business operator or disturbing the order of the telecommunications market." (See Constitutional Court, Decision of May 30, 2002, 2001 Heonba 5, en banc.)
2. Participation in Voice Phishing, the Lower Courts' Determination?
As to A, who was brought to trial for participating in voice phishing, the court of first instance and the appellate court found that A had no conditional awareness that he was being used for the crime and rendered an acquittal.
The courts determined that it was difficult to find that A had been aware of any connection to the crime, considering that A perceived the organization member merely as a courier-delivery client and that, when a police officer visited during the work, A readily complied with the officer's instructions.
In addition, the fact that the amount received in compensation was not excessive also served as a ground for the finding of acquittal.
3. Participation in Voice Phishing, the Supreme Court's Determination?
The judgment of the Supreme Court, which reviewed the charge of participating in voice phishing, was different. The Court regarded A's charge as guilty and decided to reverse and remand the case.
The Court held, "The intent for the crime of violating the Telecommunications Business Act is satisfied by the awareness alone that one is relaying communications between others by using telecommunications services, and it is not necessary to be aware even that such communications are being used for a crime."
The facts that A managed the repeaters for more than one month while moving among several locations, and that he was in possession of as many as 51 SIM cards at the time of his arrest, also served as important evidence supporting the guilty verdict.
4. Participation in Voice Phishing, Daeryun's Strategy?
We analyzed the Supreme Court's judgment, which found guilty the manager of a number-altering repeater for a voice phishing organization, with respect to the charge of participating in voice phishing.
This judgment concerned a case in which the defendant was charged criminally not in the role of a voice phishing cash collector or withdrawal agent, as is commonly known, but as the manager of a number-altering repeater.
In such a case, one should bear in mind that, because the person participated in a voice phishing organization, the conduct may constitute not only the charge of fraud under the Criminal Act but also a 'violation of the Telecommunications Business Act,' and that it may result in a heavy sentence.
If active participation in the offense of a voice phishing organization is found, an actual custodial sentence may be imposed even on a first-time offender, so we recommend obtaining the assistance of an attorney experienced in voice phishing matters without delay.
If you need assistance, you are welcome to request a legal consultation with the 🔗Criminal Group of Daeryun Law Firm LLP.
