독립몰수제도 도입에 관한 최근 입법동향 및 개선방안

As former Semo Group Chairman Yoo Byung-eon, the real owner of Ferry Sewol, died, it became impossible to confiscate his property amounting to tens of billions of Korean Won. And the same applied to the case of former Hanbo Group Chairman Chung Tae-soo. In some cases such as so-called ‘Nth Room’ case, digital sexual exploitation case or the Korean largest pornographic portal ‘Soranet’ case which made Korean society furious, criminal proceeds also could not be confiscated because it was very difficult to identify criminals who had already fled the country. This is because confiscation of criminal proceeds and the collection of the equivalent value thereof cannot be sought when the criminals are not able to be prosecuted under Article 49 of the Criminal Act (Additional Character of Confiscation). In order to overcome these limitations of the current confiscation system, Korea now needs to actively consider adopting the “independent confiscation” system (Non-Conviction based Confiscation) so that confiscation and collection of equivalent value thereof can be separately sought and imposed independently of prosecution and conviction. The introduction of the independent confiscation system is also recommended by the international community such as the UN Convention Against Corruption (UNCAC) and the Financial Action Task Force(FATF). And the United States (Civil Confiscation) and Germany (Independent Confiscation) have already implemented Non-Conviction based Confiscation. In fact, legislation draft bills, such as the Criminal Act amendment legislation bill, regarding introduction of independent confiscation have been submitted to the National Assembly several times. But these attempts have failed because of the Article 41 of the Criminal Act which stipulates confiscation as the one of the criminal punishment and lack of specific procedural clauses to enforce the independent confiscation system. However, amendment bill for the Criminal Act (Draft No. 9221) and the Act on the Regulation and Punishment of Crime Proceeds Concealment (Draft No. 9209) submitted to the 21st National Assembly respectively deleted confiscation from the lists of punishment, and provided the specified legal basis for independent confiscation under Article 49 of the Criminal Act. More noteworthy is that this very advanced independent confiscation bill regulated detailed independent confiscation procedures in the Act on the Regulation and Punishment of Crime Proceeds Concealment. However, there is still room for improvement. Some requirements for commencement of independent confiscation of the Criminal Act should be further specified. And who should be designated as the respondent for an independent confiscation lawsuit in the cases where the criminals die or are unspecified. Plus, the decisions of trials for independent confiscation and collection of equivalent value thereof must be unified in the form of judgment. Additionally, extending the period for claiming special retrial procedures is necessary on par with the Act on Special Cases concerning Expedition, etc. of Legal Proceedings. I hope that the discussion on the bill will serve as a starting point for related ministries to have in-depth consultations, so that the independent confiscation system is successfully introduced in Korea in the near future.