징벌적 몰수·추징의 법적 문제

Confiscation which is one of proprietary punishment among many other punishments is a system for preventing repetition of crimes and depriving profit from crimes. Confiscation is a supplementary punishment therefore when confiscation is impossible for assuring its effectiveness system of supplementary collection is in place. The judicial decision of Supreme Court as regards confiscation and additional collection according to such special law unlike other ordinary criminal law defined that it has a nature of disciplinary punishment on the criminal fact and special effect therefrom is recognized. As regulation on confiscation and supplementary collection of representative disciplinary nature which was recognized by the judicial precedents there are regulations on Custom Duty Law, Foreign Exchange Transaction Law and Narcotic Control Law. It seems the recognition of disciplinary confiscation and additional collection by the judicial precedents is primarily for joint and collective supplementary collection for achieving purpose of special laws in view of purport of such special laws. The intention for realizing effectiveness of confiscation and additional collection of special laws through such joint and collective, additional collection seems to have sufficient practical need despite of theoretical problems involved. Enactment of special laws on confiscation and additional collection regarding crimes related to narcotics and crimes of civil servants in order to strengthen nature of disciplinary confiscation and additional collection seems to be motivated from realizing deprivation of profit from crime. On the other hand such disciplinary confiscation and additional collection are recognized through interpretation rather than legal provisions therefore quite naturally there should be certain limitation in such interpretation. And such limitation is also applicable to the question of application of general regulation of Art. 48 of Criminal Law which corresponds to characteristics of disciplinary confiscation and additional collection and to the question of phased additional collection. As regards the issue of disciplinary confiscation and additional collection which are recognized by judicial precedents in future the important question will be defining practical need and limitation in its interpretation and realizing harmony thereof rather than whether or not such legal provision is to be recognized.