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Some people get a call from their bank saying their account has been frozen because it was used in voice phishing, or receive a demand from a victim to 'return the money that went into your account.' If the money has already moved on to another account and nothing is left with you, must you still return all of it?

In short, you are not automatically obliged to return the money just because it passed through your account. Depending on the circumstances, however, a duty to return may arise, and even without such a duty, other legal liability may remain. From the account holder's perspective, this post explains the standard for the duty to return unjust enrichment, the liability that remains separately, and how to respond to an account freeze.

[Contents]

1. Passing Through Your Account Alone Does Not Create Unjust Enrichment

2. How It Is Judged – Time in the Account, Withdrawals, Involvement

3. If You Received the Money as Payment in a Genuine Transaction

4. Liability That Remains Even Without a Duty to Return – Lending Accounts, Aiding Fraud, Damages

5. If Your Account Has Been Frozen – What the Account Holder Should Check

Passing Through Your Account Alone Does Not Create Unjust Enrichment

A duty to return unjust enrichment is borne by a person who, without legal cause, obtains a benefit from another's property and thereby causes loss to that other person (Article 741 of the Civil Act (민법)). The key question is therefore who actually obtained the benefit.

In a fraud case, the Supreme Court held that even if money sent by a victim was deposited into an account in another person's name, for that account holder to be regarded as having been enriched by that amount, there must be circumstances showing that the holder came to be in a position to effectively control the money and thus became the real beneficiary. In that case, a person who had obtained the holder's bankbook and seal in advance withdrew the entire amount on the day it arrived, and the Supreme Court reversed the lower court's ruling ordering the holder to return the enrichment, finding it hard to see the holder as the actual recipient of the benefit (Supreme Court Decision 2010Da37325, 37332, September 8, 2011).

In other words, if the fraudster pulled the money out as soon as it reached your account and you were never in a position to use it, a duty to return unjust enrichment is likely to be denied.

How It Is Judged – Time in the Account, Withdrawals, Involvement

That said, the fact that the money 'only passed through' does not settle the outcome on its own. Courts look at the whole course of events, so in practice the following circumstances are considered together.

• How long the money stayed in the account: whether it left for another account right after it was deposited, or remained for a considerable period

• Involvement in withdrawal or use: whether the holder personally withdrew or transferred it, or used the money for their own purposes

• Knowledge of and participation in the crime: whether the holder knew or tolerated that the account was being used for voice phishing, or actively took part in the scheme

Things are different if the money is still in your account. The Supreme Court has held that where there is no underlying legal relationship for a remittance but the account holder acquires a deposit claim for that amount, the holder must return the money to the sender, and that if the holder of an account used for fraud withdraws the victim's money intending to keep it, the crime of embezzlement against the victim is established. If the holder is an accomplice to the fraud, the issue becomes fraud rather than embezzlement (Supreme Court en banc Decision 2017Do17494, July 19, 2018). This means you must never take out and use victim money that remains in your account.

If You Received the Money as Payment in a Genuine Transaction

Sometimes a person sells goods, receives payment, and later learns it was voice phishing money. In a case where a person sold a pure gold necklace on a second-hand trading site and was paid with money a voice phishing criminal had transferred from the victim's account, the Supreme Court held that where defrauded money is used to pay a debt, the recipient has legal cause even as against the victim unless the recipient knew or was grossly negligent in not knowing that the money had been obtained by fraud, and it reversed the lower court's ruling ordering the seller to return the money. The victim bears the burden of proving that the seller knew or was grossly negligent (Supreme Court Decision 2024Da216187, June 27, 2024).

The same idea is reflected in the victim relief procedure. The account holder may object by showing with objective materials that all or part of the frozen money was received as payment for goods or services or was otherwise acquired with legitimate title. This does not apply, however, if the holder is found to have known, or to have been grossly negligent in not knowing, that the account was used for fraud (Article 7(1), Item 2 of the Special Act on the Prevention of Telecommunications Financial Fraud and Refund of Damaged Assets (전기통신금융사기 피해 방지 및 피해자산 환급에 관한 특별법)). This is why you should keep transaction screens, chat records and proof of delivery.

Liability That Remains Even Without a Duty to Return – Lending Accounts, Aiding Fraud, Damages

Even if a duty to return unjust enrichment is denied, not all liability disappears. First, transferring access media such as a bankbook, debit card or password to someone else, lending them for consideration, or lending them knowing they will be used in a crime is prohibited (Article 6(3) of the Electronic Financial Transactions Act (전자금융거래법)), and a violation can be punished by imprisonment of up to five years or a fine of up to 30 million won (Article 49(4) of the same Act). If you are sentenced to a fine or imprisonment for this, your electronic financial transactions may also be restricted for a certain period (Article 13-2(1) of the Special Act on the Prevention of Telecommunications Financial Fraud and Refund of Damaged Assets).

If you knowingly provided an account or otherwise made the voice phishing crime easier, criminal liability such as aiding and abetting fraud may be at issue. Civilly, the victim may also claim damages from the account holder as a joint tortfeasor (Article 760 of the Civil Act), and whether the holder is liable and to what extent can vary with whether, and how far, the holder was at fault.

If Your Account Has Been Frozen – What the Account Holder Should Check

When a victim applies for relief or information is provided by an investigative agency or others, the financial institution must freeze the entire account if there are grounds to suspect it was used for fraud, and must notify the account holder (Article 4(1) and (2) of the Special Act on the Prevention of Telecommunications Financial Fraud and Refund of Damaged Assets).

The account holder may file an objection with the financial institution from the date the freeze or restriction was imposed until two months have passed from the date of the public notice commencing the claim extinction procedure. The grounds are: ① showing that the account is not an account used for fraud; ② showing with objective materials, as discussed above, that the money was received as legitimate payment; and ③ showing with objective materials that the account was not used to defraud the victim's assets (Article 7(1) of the same Act).

In short, the mere fact that voice phishing money passed through your account does not determine whether you must return it. The key questions are whether you effectively controlled the money and obtained a real benefit, and whether it was payment in a genuine transaction, while criminal and civil liability can arise separately depending on how the account came to be used, how you managed your access media and how far you were involved in the crime. If you receive a demand for return or notice of an account freeze, first organize the deposit and withdrawal records and how the account came to be used.

Cheongchul Law Firm directly handles responses to claims for the return of voice phishing money, objections to account freezes, and investigations involving account lending or aiding fraud. If you need assistance, please contact us through consultation booking.

This post is written for the purpose of providing legal information and does not constitute legal advice on any specific matter. Since conclusions may differ depending on the facts of each case, please be sure to consult a professional.