범죄수익몰수제도의 문제점과 개선방안 - 2011년 형법일부개정법률안에 대한 검토를 중심으로 -

Confiscation of criminal proceeds has been considered as an effective way of responding to organized crimes by eliminating sources for criminal earnings. There have been greater needs to make confiscation of criminal assets possible in the Korean Criminal Code. Responding to such needs, the amendment of the criminal law was suggested. The essential features of the amendment are as follows : (1) deleting confiscation in the list of criminal punishments under the General Provisions of the Criminal Code, (2) changing the object of confiscation from ‘goods’ to ‘goods, money, and other property’, which allows the criminal justice system to confiscate the criminal earnings, and (3) introducing the independent confiscation in the criminal law. The amendment was submitted to the National Assembly on March 25, 2011 and is now under the review of the National Assembly. The 2011 Amendment of the Korean Criminal Code, however, leaves much to be desired. I believe, this is an opportunity to reorganize the legal provisions in special laws concerning the confiscation of the criminal proceeds, which are intertwined each other, even though this unraveling job is a complicated one. The first step to proceed is the complete adoption of the confiscation of criminal earnings in the Korean Criminal Code. It is necessary to enumerate the concepts of ‘criminal earnings’ and ‘assets originated from the criminal earnings’ as an object of the confiscation in the criminal law. These concepts are presently articulated in the special laws, not in the Criminal Code. As a way of including these concepts into the Criminal Code, reclassification of these concepts should be required. I argue that the object of confiscation should not be limited to the direct earnings from a criminal action. As long as specific assets are obtained from a certain criminal behavior and can be traceable, these assets should be included in the object of confiscation, regardless of the form of the assets based on transformation and convert. Second, procedural provisions such as the independent confiscation procedure and the preservation procedure for confiscation should be included in the Criminal Procedural Code. Thus, the revision of the Criminal Procedural Code should be followed by the amendment of the Criminal Code. Third, the special code for the confiscation of criminal proceeds should be enacted. Certain types of confiscation cannot be incorporated into the Criminal Code and the Criminal Procedural Code because these types of confiscation are relevant to the special criminal behaviors. Thus, such types of confiscation should be covered comprehensively through the special code. Fourth, along with this reform, there should be modification of relevant surrounding systems. For example, for the effective confiscation of the criminal proceeds, the system of employing alternative fines or using confiscated assets should be implemented.