Blog, Criminal

Phishing is one of the most problematic crimes in Korea nowadays. The Korean government is trying hard to eradicate phishing crime and relieve the victims of the crime. 

This article is about what you can do to have the money returned. 

Filing a civil lawsuit against the assailant

You can file a lawsuit against the assailant for the return of the money. There are two possible means of attack: one is to claim for unjust enrichment (부당이득), and the other is to claim compensation for the damage by torts (불법행위). 

Civil Act

Article 741 (Definition of Unjust Enrichment)

A person who without any legal ground derives a benefit from the property or services of another and thereby causes loss to the latter shall be bound to return such benefit.

 

Article 750 (Definition of Torts)

Any person who causes losses to or inflicts injuries on another person by an unlawful act, intentionally or negligently, shall be bound to make compensation for damages arising therefrom.

As the two claims concurrently exist, you can file a lawsuit with either claim. Please note that you cannot double the amount of the compensation. Once any claim reaches satisfaction, then the other gets satisfied. 

You may wonder how you can file a civil lawsuit when you do not even know who the assailant is. In this case, you can file a request for fact inquiry (사실조회), stipulated in the Civil Procedure Act Article 294. 

Civil Procedure Act 

Article 294 (Entrustment of Examination)

A court may entrust a public agency, school or other organization and individual, or a foreign public agency with the examination required for matters belonging to its functions, or with the forwarding of a certified copy or a copy of documents kept by it.

With this, you can sue the assailant, and at the same time, ask for the court to order the bank to provide the data of the assailant. As at least you may know the bank account of the assailant (or the burner bank account, 대포통장), you may wait until the financial company reports the data of the account owner. When you figure it out, then you can fix the lawsuit accordingly. 

Filing a petition with the financial institution

The second option is to file a petition with the bank. According to the Special Act On The Prevention Of Loss Caused By Telecommunications-based Financial Fraud and Refund For Loss (전기통신금융사기 피해 방지 및 피해금 환급에 관한 특별법) Articles 3, 4, 5, 9, and 10, you can file a petition to the financial company that manages the account exploited for fraud. 

Article 3 (Application for Remedy for Loss)

(1) A victim may apply for the remedy of damages caused by telecommunications-based financial fraud, such as suspension of payment from an account exploited for fraud, to the financial company that manages the account from which the amount of damage has been remitted or transferred or the financial company that manages the account exploited for fraud.

(2) Where the amount of damage has been remitted or transferred to an account exploited for fraud of other financial company, the financial company which has received an application for the remedy of damages pursuant to paragraph (1) shall provide the relevant financial company with necessary information and request the same to suspend payment.

 

Article 4 (Suspension of Payments)

(1) In any of the following cases, if a finance company suspects that an account is being exploited for telecommunications-based financial fraud through the confirmation of the details of transactions, etc., it shall immediately take measures to suspend payments on all of such account exploited for fraud:

1. 1. Where there is an application for the compensation for loss under Article 3 (1) or a request for the suspension of payments under Article 3 (2);
   2. Where an investigative agency or the Financial Supervisory Service established under the Act on the Establishment, etc. of Financial Services Commission (hereinafter referred to as “Financial Supervisory Service”) provides the finance company with information that an account is suspected of being exploited for fraud;
   3. Where an account is assumed to be exploited for fraud after taking the measure to identify the account as an account for unconscionable transactions under Article 2-5 (2);

 

Article 5 (Public Announcement on Commencement of Procedure for Extinguishment of Claims)

(1) Where a finance company has taken measures to suspend payments pursuant to Article 4, it shall, without delay, request the Financial Supervisory Service to make a public announcement for the commencement of the procedure for extinguishment of claims (hereinafter referred to as “procedure for extinguishment of claims”) of the account holder, as prescribed by Presidential Decree: Provided, That this shall not apply where all or some of the claims held by the account holder fall under any of the following cases:

Article 9 (Extinguishment of Claims)

(1) Claims (limited to the amount for which the Financial Supervisory Service has made a public announcement of the commencement of procedure for the extinguishment of claims under Articles 5 (2) and 6 (3)) of the account holder shall be extinguished if two months lapse from the date the commencement of the first procedure for the extinguishment of claims is publicly announced under Article 5 (2).

 

Article 10 (Determination and Payment of Refund for Loss)

(1) The Financial Supervisory Service shall determine the person who is to receive a refund for loss and the amount thereof within 14 days from the date the relevant claims are extinguished pursuant to Article 9 (1) and then notify the victim who has applied for the remedy of damages and the financial company pursuant to Articles 3 (1) and 6 (1) of the details thereof, and the financial company notified of such details shall pay the victim such refund for loss without delay.

(2) Where the sum of loss exceeds the amount of claims extinguished, the refund for loss under paragraph (1) shall be the amount calculated by multiplying the amount of claims extinguished by the ratio of the amount of loss of each victim to the total amount of loss, and in other cases, it shall be the relevant amount of damage.

Long story short, when the petition is accepted, then the bank shall lock the reported account. When it is locked, the assailant (or the account owner) cannot withdraw the money from it. After a certain process, the bank shall extinguish the account, and compensate you with the money from the account. 

To file a lawsuit against the financial institutions

Financial institutions must perform certain obligations to prevent phishing crimes. If the nonperformance of the obligation by the financial institution is proven, then the financial institution shall be responsible for the accident. 

1. According to Special Act On The Prevention Of Loss Caused By Telecommunications-based Financial Fraud And Refund For Loss Article 2-4, the financial institutions must take measures to identify the users applying for a loan or withdrawing a saving deposit. 
2. According to Special Act On The Prevention Of Loss Caused By Telecommunications-based Financial Fraud And Refund For Loss Article 2-5, the financial company shall take interim measures to lock the suspicious account. 

Article 2-4 (Responsibilities of Finance Companies for Prevention of Loss)

To prevent loss that may be caused by telecommunications-based financial fraud, when a user conducts any of the following, every finance company shall take measures to identify such user as prescribed by Presidential Decree (hereinafter referred to as “measure for identification”): Provided, That the same shall not apply to cases prescribed by Presidential Decree where a user as a corporation does not wish to proceed with measures for identification or where it is impracticable to take measures for identification such as where a user is sojourning abroad: <Amended on Jan. 27, 2016>

1. 1. Where a user applies for a loan to a finance company;
   2. Where a user withdraws a savings deposit, installment savings, and premiums he/she has subscribed under a contract concluded with a finance company, or other financial products prescribed by Presidential Decree.

 

Article 2-5 (Interim Measures for Accounts of Users)

(1) Where a finance company deems, through internal checking, that sufficient grounds exist that the account of a user is presumably used for suspicious transactions that may cause telecommunications-based financial fraud (hereinafter referred to as “account for unconscionable transactions”), the finance company shall take measures to postpone or temporarily suspend direct depositing or remittance with respect to all or part of the account of the relevant user (hereinafter referred to as “interim measure”).

The best is, not to be deceived by the scammer from the beginning. However, the tricks the scammers use are getting more complicated and delicate, it is getting hard not to get fooled by the assailants. However, do not panic. There are always ways to handle it. 

Seoul Law Group has various experiences with phishing cases. If you need any help, please do not hesitate to contact us. 

You can find more information about voice phishing in the following articles.

• Voice phishing in Korea
• Voice phishing job scams in Korea