[Criminal, Voice Phishing] Whether the money transferred to the creditor of a voice phishing criminal is unjust enrichment

Hello, I am Attorney Eom Sang-yoon from Cheongchul Law Firm.

Voice phishing crimes not only involve significant damages but also present challenges in recovering losses. Today, we will explore whether a victim of voice phishing can seek the return of unjust enrichment against a creditor who received the crime proceeds.

[Question]

I am a victim of a voice phishing crime. Among the damages, I confirmed that the voice phishing criminal transferred money stored in my account for the purchase of goods. Is it possible to claim the return of unjust enrichment against the person who received that payment?

[Answer]

Under the law, a person who benefits from another's property or labor without a legal cause, causing damages to that other person, is obligated to return that benefit (Civil Code Article 750).

The court explains the purpose of this unjust enrichment return regulation by stating, "The concept of unjust enrichment is based on the idea of fairness and justice, which imposes the obligation to return on the beneficiary when the beneficiary's acquisition lacks legal grounds. In cases where there is a change in asset value between specific parties that seems just and legitimate in a general or formal sense, but contradicts the idea of fairness from a relative and substantive perspective, it is a system aimed at resolving such contradictions by mandating the return of the acquired value" (Supreme Court Decision 2014Da5531, Full Bench ruling).

Consequently, precedents have established that when a debtor uses the money embezzled from a victim to repay a debt to his creditor, if the creditor receives the repayment and there is no malice or gross negligence regarding the fact that the money was embezzled, the creditor's acquisition of money is considered to have a legal basis in relation to the victim (2006Da53733 ruling, etc.).

Based on this legal principle, the recent Supreme Court ruling 2024Da216187 determined that the plaintiff was defrauded by a voice phishing criminal impersonating their daughter and installed remote control software on their phone. Subsequently, the criminal purchased a gold necklace from the defendant and transferred approximately 29 million won for the purchase price. It ruled that the burden of proving whether the creditor knew or was grossly negligent in not knowing that the money received was embezzled falls on the victim. Furthermore, even if the plaintiff did not directly carry out the transfer, the plaintiff caused the installation of the remote control software on their phone, and there is no reason to treat differently the act of the unidentified voice phishing criminal making the plaintiff transfer to the defendant’s account from the criminal deceiving the plaintiff and directly transferring from the plaintiff's account to the defendant's account based on the information obtained from the plaintiff. Additionally, the defendant was only selling a gold necklace through an online secondhand trading site, making it challenging to conclude that the defendant was aware or grossly negligent regarding the fact that the payment for the gold necklace was embezzled from the plaintiff, leading to the dismissal of the plaintiff's claim for the return of unjust enrichment against the defendant.

This Supreme Court ruling clarifies that if the creditor did not know or was not grossly negligent in knowing that the money received as repayment was an embezzled amount, the obligation to return unjust enrichment to the victim does not arise, and the burden of proof regarding malice or gross negligence rests with the victim.

Therefore, for a victim of voice phishing to claim the return of unjust enrichment from a criminal's creditor, they must be able to prove through evidence that they knew or could have known with a little more attention that the money received was obtained through fraudulent activities.

Cheongchul Law Firm is a corporate law firm established by lawyers from the four major law firms, providing comprehensive solutions to corporate crimes such as fraud, embezzlement, and breach of trust. Please feel free to contact us via email or phone should you have any additional inquiries.