Last year, while the statutory penalty for voice phishing crimes was significantly increased under the 'Special Act on Prevention of Damage from Telecommunications and Financial Fraud and Refund of Damages,' related sentencing standards were improved by creating new crime types and crime groups in the sentencing standards for fraud crimes. It was pointed out that provision should be made.
On the 24th, the Sentencing Research Group (Chairman Lee Joo-won) under the Sentencing Committee held a symposium on the topic of ‘Fraud and Sentencing’ at the Supreme Court Auditorium in Seocho-gu, Seoul.
Seong-min Jeong, Chief Judge of the Gunsan Branch of the Jeonju District Court, said, “In 2014, Article 15-2, a punishment provision for voice phishing crimes, was newly added to the Telecommunications Fraud Damage Refund Act, but in practice, this provision is applied to punish voice phishing offenders (hereinafter referred to as ‘ “Crimes of violating special laws” were rare, he explained, “because the maximum prison sentence for violating special laws was 10 years, the same as for fraud, so there was little practical benefit in applying the special law, and the special law could not be applied if property other than property gain was acquired.”
He continued, “Last year, the statutory penalty for violating special laws was increased significantly to not less than 1 year but not more than 30 years, and a fine equivalent to 3 to 5 times the proceeds of the crime.” He added, “In the future, voice phishing crimes will not be frauds under the Criminal Act, but will be subject to special laws.” “The number of prosecutions for violations will increase,” he predicted.
He also said, “The lower limit of imprisonment for violating special laws is one year, but considering the current sentencing standards, sentencing practice, and extenuating circumstances for voice phishing crimes, setting the lower limit will not have a significant impact on sentencing practices for lower-level gang members.” He emphasized, “We need to watch future practice to see whether the increase to 30 years will affect the sentencing of high-ranking gang members.”
“Currently, there are no sentencing standards for violations of special laws, so new sentencing standards must be prepared,” he said. “Rather than applying the existing sentencing standards for organized fraud as is, a plan is to add a new crime type or create a new crime group to the sentencing standards for fraud crimes.” “This would be more appropriate.”
He said that we should also consider introducing ‘proceeds of crime’ as a new sentencing factor for voice phishing crimes. Currently, voice phishing crimes are classified as ‘organized fraud’ under the sentencing guidelines for fraud crimes.
Chief Judge Jeong said, “The Suwon District Court Ansan branch ruling (2016 Gohap 203) individually evaluated sentencing factors such as the amount of defrauding, criminal proceeds, and crime period for the overall plan, management plan, and inducement plan, and then determined the sentence by conducting a comprehensive evaluation based on this. “He explained, “This is a useful method for sentencing voice phishing crimes with multiple defendants.”
He continued, “If the number of sentences sentencing in this way accumulates, it may lead to supplementation or modification of the sentencing standards.” Among these, the proceeds of crime include ‘cases of intentional concealment of criminal proceeds’, which are special aggravating factors, and ‘crime’, which is a general mitigating factor. He argued, “Some of these are reflected in the sentencing guidelines, such as ‘cases where most of the profits cannot be consumed or retained,’ but there is a need to review the preparation of more detailed sentencing factors based on the proceeds of crime.”
Also, “If the period of the crime is long, it may fall under the special aggravating factor ‘if the crime was committed repeatedly over a considerable period of time,’ but according to the positive theory of its application ‘when targeting an unspecified victim,’ both belong to one special aggravating factor.” He pointed out, “There is also the problem that in this case, the number of specially aggravated persons does not increase, so there is no impact on the recommended sentencing range.”
At the same time, he said, “We can consider separating the period of the crime from the special aggravating factor above or establishing a new general sentencing factor,” but added, “There are many cases in which the scale of the crime or the proceeds of the crime, such as the amount of money stolen, are more important sentencing factors than the period of the crime, and the period of the crime is more important.” “It should be taken into account that it will be proportional to some extent to the scale of the crime or the proceeds of the crime,” he said.
Seoul Central District Court Judge Kwon Gyeong-seon pointed out that there are cases where sentencing imbalances occur due to sentencing guidelines even though the degree of participation in the crime is different.
Judge Kwon explained, “The subtypes of organized fraud are divided into five types based on the amount of profit from the fraud: less than 100 million won, more than 100 million won and less than 500 million won.”
He continued, “The amount collected from the victims by the cash collection method is large, but the actual benefit that the person obtains as a result is 100,000 to 200,000 won per day or per case, which is not proportional to the amount collected.” “Whether it is 120 million won or 3 million won is purely a coincidence, but the sentencing range varies greatly depending on the amount collected,” he pointed out.
In addition, “Cash collection schemes are arrested after collecting cash once or twice, or are arrested before a month or two at the most, so most of the crimes are committed for a short period of time. However, these circumstances are not particularly considered in sentencing, whereas the short period of participation in inducement schemes is a major consideration in sentencing. He criticized, “Although it would be reasonable for incentives to be punished more severely than cash collection measures, in many cases an imbalance may occur where incentives are punished similarly or lightly to cash collection measures.”
At the same time, he said, “Voice phishing crimes, especially cash collection methods, need to be developed in a different way rather than being divided into subtypes based on the amount of profit obtained through fraud as is currently the case.” He emphasized, “We need to ensure that a sentence commensurate with the role played in the voice phishing crime is imposed through methods such as adjusting special sentencing factors.”