보이스피싱 범죄의 양형 실무상 쟁점

Despite continuous warnings and publicity, voice phishing crimes are still occurring on a large scale. As voice phishing crimes are characterized by a high degree of organization, high-ranking members such as leaders and managers are barely arrested, while low-ranking members operating in Korea are mainly arrested and punished. Most voice phishing criminals are punished for fraud under the Criminal Act, but there are also cases where they are punished for violating the Act on Regulation and Punishment of Criminal Proceeds Concealment, the Electronic Financial Transactions Act, etc. As the Special Act on the Prevention of Loss Caused by Telecommunications-based Financial Fraud and Refund for Loss was revised in 2023, the statutory punishment for voice phishing crimes was raised, and the scope of punishment was expanded. As the number of cases indicted for violating the above Special Act is expected to increase in the future, it is necessary to establish sentencing guidelines therefor. The sentencing guidelines for organizational fraud among crimes of fraud apply to voice phishing fraud. In the application of sentencing guidelines, there is an issue as to whether special aggravating factors such as “crime against unspecified multiples of victims or prolonged and repeated commission of the crime”, “inflicting serious harm to the victim”, “deliberate concealing of profits made from the crime” and special mitigating factor such as “mere participation” are applied. The sentencing guidelines are set differently depending on the individual crime group and crime type whether to consider willful negligence as an advantageous sentencing factor. Unlike the general fraud sentencing guideline, the organizational fraud sentencing guideline does not stipulate “fraud by willful negligence” as a special mitigating factor. However, even in organizational fraud, willful negligence is a primary affirmative factor in suspending a sentence. Examining recent sentencing practices for voice phishing fraud, high-ranking members are sentenced to high sentences, and low-ranking members are often sentenced to imprisonment. It is necessary to discuss specific application criteria for special aggravating factor such as “crime against unspecified victim”, special mitigating factor such as “mere participation” and introduction of new sentencing factor such as “profits made from the crime.” Many voice phishing crimes are occurring in Japan as well. There are many aspects similar to Korea in terms of punishment, such as the high punishment rate for low-ranking members, the high rate of imprisonment, and the fact that high-ranking members are punished more severely.