Supreme Court Overturns and Remands Case, Finding Accomplice Who Lent Bank Account for Voice Phishing Guilty

'Intentional Aiding' Principal Offender Recognized Without Knowing Specific Crime Type

Supreme Court, Seocho-dong, Seoul.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court has ruled that an accomplice who lent their bank account to a voice phishing criminal can be punished for aiding and abetting even if they did not specifically recognize what crime the principal offender was committing.

The Supreme Court's First Division (Presiding Justice No Tae-ak) announced on the 15th that it overturned the lower court's acquittal of defendant A, who was charged with aiding and abetting a violation of the Act on Real Name Financial Transactions and Guarantee of Secrecy, and remanded the case to the Cheongju District Court.

The court stated, "The lower court's judgment contained an error affecting the verdict by misunderstanding the meaning of 'evasive acts' as referred to in Article 3, Paragraph 3 of the Act on Real Name Financial Transactions and the legal principles regarding the 'intent of the principal offender' in aiding and abetting."

In January 22, 2019, A received a text advertisement saying "Hiring staff at the Macau MGM Korean Guesthouse" and made an inquiry call. Shortly after, A received a voice call from B.

B told A, "Our headquarters are in Macau, and we have chain stores in Korea. We handle currency exchange services for customers in Korea. You just need to withdraw the money deposited by customers and deliver it to the currency exchange staff. We will pay you 4 to 6 million KRW per month." A then gave B the account number of their credit cooperative account.

A week later, upon B's contact, A withdrew 9.4 million KRW transferred by a person named Lee to A's credit cooperative account, deducted a 150,000 KRW fee, and handed over the remaining 9.25 million KRW to B. However, B was a voice phishing criminal, and the money deposited into A's account was money that B's group had fraudulently obtained from victim Lee.

The prosecution charged A with aiding and abetting B's use of another person's real name for financial transactions for the purpose of evasive acts.

Article 3, Paragraph 3 of the Act on Real Name Financial Transactions prohibits financial transactions under another person's real name for the purpose of illegal concealment of property, money laundering, evasion of compulsory execution, or other evasive acts. Article 6, Paragraph 1 of the same law stipulates penalties of up to five years imprisonment or fines up to 50 million KRW for violations.

However, the first and second trial courts acquitted A.

The first trial court cited a Supreme Court ruling stating, "Aiding and abetting is an act by an accomplice who facilitates the principal offender's criminal act knowing that the principal is committing a crime. Therefore, the accomplice must have intent to aid the principal and also recognize that the principal's act constitutes the elements of a crime."

Unlike the principal offender who commits the crime themselves, the Supreme Court's position is that an accomplice (aider and abettor) must have not only the intent to aid but also awareness that the principal's act constitutes a criminal offense.

The court stated, "Therefore, only when the defendant has intent regarding the principal's financial transaction under another person's real name for the purpose of evasive acts, can the defendant be held liable for aiding and abetting a violation of the Act on Real Name Financial Transactions."

In other words, A must have recognized that B was using A's account for financial transactions for the purpose of evasive acts under the law for aiding and abetting to be established.

The court added, "It has not been specified what specific law the act of withdrawing money deposited by customers and delivering it to currency exchange staff is intended to evade. Therefore, the prosecution's facts correspond to a case without proof of crime, and an acquittal is warranted."

The court concluded that A could not be recognized as having intent regarding the principal offender because it could not be established that A was aware that B was using A's real name account for evasive acts in violation of Article 3, Paragraph 3 of the Act on Real Name Financial Transactions.

The second trial court also found no problem with the first trial's judgment.

However, the Supreme Court's judgment differed.

The court first cited a Supreme Court ruling stating, "The intent of the principal offender in aiding and abetting does not require recognition of the specific details of the crime realized by the principal; conditional awareness or foresight is sufficient."

It further added, "Violation of Article 6, Paragraph 1 of the Act on Real Name Financial Transactions is a purpose crime with an ultra-subjective illegality element, requiring the 'purpose of evasive acts' as a condition for criminality. Therefore, the aider and abettor must have intent regarding the principal's financial transaction under another person's real name for such evasive acts, but it is not necessary to recognize the specific content of that purpose."

In other words, while an aider and abettor must have intent to aid the principal and awareness that the principal's act constitutes the elements of a crime, it is not necessary for the aider and abettor to recognize exactly what specific criminal act the principal is committing. Also, the subjective element of 'purpose' does not require detailed awareness.

The court found that the facts known to A at the time of the crime were sufficient to establish aiding and abetting a violation of the Act on Real Name Financial Transactions.

The court noted, "The defendant stated in response to police questioning, 'I thought using a personal currency exchange was better because bank fees were expensive,' when asked if anything seemed strange about the currency exchange method."

It continued, "The defendant recognized that the principal was attempting to conduct financial transactions under another person's name for unregistered currency exchange business, which constitutes an evasive act, yet provided their financial account information to assist this crime. Therefore, the defendant is liable as an aider and abettor under Article 6, Paragraph 1 of the Act on Real Name Financial Transactions, and even if the defendant did not precisely recognize the specific details of the evasive act intended by the principal, it does not affect the establishment of the crime."

In conclusion, even if A did not recognize that B was using A's account for voice phishing or other "telecommunication financial fraud," if A recognized that B was conducting financial transactions under another person's real name for the purpose of unregistered currency exchange business violating the Foreign Exchange Transactions Act, A can be punished as an accomplice to B's crime, according to the Supreme Court.

This content was produced with the assistance of AI translation services.