대포통장 명의인의 보이스피싱 피해금 인출‧사용행위와 그 죄책

Abstract

This paper examines the liability for crime of the account holder of a borrowed name bankbook used for voice phishing at each stage of making the borrowed-name bankbook, assignment of right, and withdrawing amount of loss. The conclusion is as follows. To begin with, this paper examined the account holder's act of making a borrowed name bankbook to sell it as a borrowed name bankbook. It is a legitimate exercise of rights to obtain a bankbook. Also, there is no obligation to notify the bank of the plan to sell it as a borrowed name bankbook. So this act does not constitute fraud for the bank. Next, the account holder's liability of crime for selling a borrowed name bankbook is as follows. First, the account holder has no obligation to notify the voice phishing criminal that "he plans to stop the transaction of the borrowed name bankbook and make a new bankbook and withdraw money." Therefore, the act of selling a borrowed name bankbook does not constitute a fraud for the voice phishing criminal. Second, the act of selling a borrowed name bankbook can be punished as accessory of fraud of the crime committed by a voice phishing criminal. However, there is a limit to the establishment of crimes of fraud in connection with the criminal intent of the aid. Third, the act of the account holder's selling a borrowed name bankbook is a violation of the electronic financial transactions act because it is a transfer of an access medium. Also, a voice phishing criminal's receiving amount of loss through a borrowed name bankbook is equivalent to accessory of violation of the financial real name law because it is a transaction using borrowed name bank account. Finally, the act of withdrawing and using the amount of loss by the account holder is not any offense under the criminal law. First, the account holder has exercised a legitimate deposit bond so it is not deception. It is also not the case that the bank made a disposition because of a mistake. Therefore, fraud for a bank can not be established. Second, the money withdrawn by the account holder is a stolen property, but it is only the result of the account holder's requesting return of deposit. And it does not mean that he has actually acquired the right to dispose of it by transferring occupation from the voice phishing criminal. Therefore, it is not applicable to the crime of acquisition of stolen property. Third, embezzlement can not be established because the keeping relationship of the withdrawn money between the account holder and the victim or the voice phishing criminal can not be acknowledged. Fourth, the account holder's act of withdrawing the money transferred to the borrowed name bankbook is obtained by exercising his rights as a deposit creditor. Therefore, it is not to be considered larceny, since it can not be seen as against the will of the bank.