압수물의 처리 및 환부제도에 관한 시론

Seized properties are released from seizure only when the court decides not to order forfeiture at the sentencing stage. To protect property rights, our criminal procedure law describes the returning procedure of seized properties. When it is not necessary to keep the seized properties the return is mandatory, and it is also possible to return the seized property upon a claim for return by interested parties. The Supreme Court has decided “Government’s duty to return the seized properties cannot be avoided even if the government directs the possible claimants to waive their claim” that the right to claim for return of seized properties cannot be waived, However the nature of this right and whether if it really cannot be waived, is quite in question. Moreover, it is questionable whether returning the seized property is justified, when there is no legal basis to permanently forfeit the property but at the same time 1) it is highly likely that the property can be used for crime or pose a threat to the society, 2) the production and possession of the property is prohibited by the law, or 3) there is no actual profit to return the property. Being not possible to forfeit the property when the government decides not to prosecute is also a problem. Even if the statute of limitation of a case has expired seized illegal properties should be subject to forfeiture. In this case, defendant can benefit from prompt termination of legal proceedings, by relinquishing the possession or the claim. This research critically reviews the aforementioned Supreme Court decision, emphasizes the needs of various procedures and legal basis to respect the owner’s decision regarding the seized properties, and to permanently forfeiture the properties in certain circumstances when the owner agrees, and finally suggests a legislative solution about its conditions and procedures.