보이스피싱의 정범과 공범 - 현금수거 · 인출 · 전달책을 중심으로 -

Abstract

This paper aims to clarify the circumstances under which lower-level participants in voice phishing crimes—such as cash collectors, cash withdrawers, and couriers—can be judged as co-principals, accomplices, or found not guilty. Although these individuals objectively play a critical role in the commission of the crime,their subjective awarenessofthe criminal methods isoftenunclear, making the legal standards for determining their participation and guilt ambiguous. To address this, the paper first reviews the existing legal precedents that distinguish between the guilt or innocence and the type of participation of lower-level participants. Precedents categorize subjective elements into vague recognition of the possibility of illegality, indirect intent, and intent to collaborate, corresponding to judgments of not guilty, accomplice, and coprincipal, respectively. While courts render appropriate judgments through concrete fact-finding based on this legal doctrine, some fact-finding elements are insufficiently explained or conflicting, leading to confusion. For example, the mere fact that a cash withdrawer played a crucial role in the completion of the crime is insufficient to justify categorizing them as a co-principal. The criteria for recognizing indirect intent based on the defendant's social background and media reports on voice phishing methods are also unclear. Furthermore, high compensation is sometimes viewed as an indication of co-principal status, while in other cases, it is not. Since the determination of guilt or innocence, as well as the possibility of receiving mandatory mitigation as an accomplice, is central to the defendant's right to defense, there is a need for greater predictability in the application of these standards. In conclusion, this paper proposes four alternatives. First, when recognizing subjective elements, hypothetical or abstract judgments should be avoided, and intent should be acknowledged based on realistic and concrete facts. Second, the possibility of a modified co-principal theory, which takes into account the organized nature of the crime and relaxes the subjective elements, should be explored. Third, it suggests distinguishing between types of participation based on the timing of involvement, in relation to the initiation and completion of the crime. Fourth, the recently amended Special Act On the Prevention of Loss caused by Telecommunications-based Financial Fraud and Refund For Loss should be actively applied to seek ways to punish lower-level accomplices such as cash collectors directly under this law, instead of as accomplices to fraud.