차명으로 은닉된 범죄수익의 종국적 환수방안 연구 - 명의신탁과 채권자 대위소송, 사해행위 취소소송 및 민사상 가압류를 중심으로 -

Most of the various types of crimes committed in Korea are related to money, and those who commit such crimes make a lot of profits through the crime. Reclaiming criminal proceeds in response to money laundering crimes is realized through a system called confiscation and collection, however, the execution rate (based on the amount of execution) sentenced by the ruling does not exceed 1 percent as of August 2018. Many scholars suggest that fundamental system improvement is necessary, citing the inherent limitations of the confiscation and collection system and the laxity of our legal system. More fundamentally, however, there is little discussion about how the nation should strive to ultimate recover criminal profits under our own system. Criminals are likely to launder money acquired by criminal activity. They usually goes through a method of concealing criminal proceeds under another name. If such hidden assets are tracked and discovered, the hidden assets shall be promptly frozen through the confiscation and collection preservation system if they are under investigation or trial, or through the provisional seizure system under the Civil Enforcement Act if the judgment is confirmed. More specifically, if a judgment is confirmed, the procedure should be carried out to transfer borrowed-name property to the criminal's name through subrogation action by creditor and revoking of fraudulent act, which is recognized by the Korean Civil law. This is because only then can the judgment of confiscation and collection of criminals be executed. Nevertheless, the actual state of operation of the criminal return system in Korea is limited to the confiscation and collection preservation system during investigations or trials. It will now be necessary to shift the perception that extends the realm of reclaiming criminal proceeds to the stage of execution, not only conservation.