미국의 온라인 피싱사기방지법과 시사점 - 피해자보호를 중심으로 -

Abstract

Online phishing scam is a type of crime expanding most rapidly in the 21st century as a result of dissemination of the Internet services and facilitation of electronic commercial transactions. To the extent that online phishing scams are spreading out at an alarming speed with various tricks, however, there are limits on coping with the phishing schemes by virtue of the current laws, and it is not easy to timely secure a legal system with details of proper fraud prevention mechanisms and damages prevention methods. Furthermore, since phishing scams are committed online, it is highly likely to encounter difficulties in enforcing the laws because it is difficult to detect fraudulent activities or trace locations of frauds, and the commission of frauds are prevalent across national borders. It should to systematically establish and improve a solid legal system, therefore, to prevent and counteract online phishing scams. In the Republic of Korea, in order to more effectively handle phishing frauds related to online financial transactions, the 「Special Act on Prevention and Return of Damages Relating to Telecommunications Financial Frauds」 was implemented from July 29, 2014 by supplementing a loophole in the preexisting law and introducing new provisions to prevent damages. In the United States, at the federal level, the 「Identity Theft and Assumption Deterrence Act」 was established in 1998 and further developed to prevent online identify frauds, and at the state level, starting from the State of California in 2006, a total of 23 states have legislated the express law called 「Anti-phishing Act」 under differing legal systems. From the perspective of appropriate protection of phishing victims, this article seeks to provide legislative alternatives to more effectively and substantively cope with online phishing scams in the future by completely analyzing the U.S.' online phishing fraud prevention related laws in that the U.S. have experienced the seriousness of phishing scams and made and amended laws to cope with the phishing scams prior to the Republic of Korea. In the future, with respect to online phishing fraud prevention related laws of the Republic of Korea, elements of online phishing fraud should be systematically put in place to include various types of phishing scams without any omission to the extent that it does not contravene the principle of legality. In connection with a punishment provision(s) thereof, it is necessary to subdivide relevant sentences and prison terms according to the severity of the subsequent crimes or illegal activities that a phisher seeks to commit after initially obtaining personal identification information of third parties. Moreover, phishing victims should be provided not just with direct remedies including the return of damages or suspension of payment for their accounts, but also with more practical legal remedies. In addition, it may be considered to introduce a fund-raising system to appropriate the penalties collected from phishing frauds to educate consumers and develop counteracting technologies. Ultimately, the essence of future legislative endeavors should be to develop more systematic legal criteria to prevent the convenience of the Internet and the Internet users' welfares from being died out powerlessly, as a result of online phishing scams' being committed or encouraged by simply evading a network of punishment due to a legal loophole.