특별법 개정을 통한 독립몰수제 도입의 필요성

State violence crimes often remain concealed in their aftermath due to the organized involvement of public authorities, the concealment or manipulation of evidence, and the silencing of victims. In many cases, the truth is revealed only decades later, by which time the statute of limitations has expired, perpetrators have died, or even the identification of defendants becomes nearly impossible. However, under the current criminal law framework, confiscation is limited to an ancillary penalty imposed upon conviction, thereby creating a structural limitation in which illicit proceeds cannot be recovered where prosecution or conviction is unattainable. This limitation reminds us that the fundamental purpose of the criminal justice system lies not merely in punishing individuals but in restoring social harm and realizing justice. Modern criminal law increasingly shifts its orientation from a punishment-centered model toward one emphasizing victim restoration and the realization of social justice. A new paradigm has emerged that seeks to deter crime and restore victims simultaneously through the effective recovery of criminal proceeds. This development stems from recognition that traditional conviction-based confiscation regimes lack effectiveness in numerous cases—such as corruption by those in power, organized crime, and state violence crimes—where convictions prove impossible or ineffective. This trend has also been widely recognized in the international community. Instruments such as the United Nations Convention against Corruption (UNCAC) and the Financial Action Task Force (FATF) recommend the adoption of non-conviction-based confiscation mechanisms that allow asset recovery without a criminal conviction. In line with these global developments and the growing demand for substantive justice, legislative discussions in Korea have increasingly focused on introducing such mechanisms. Notably, certain legislative proposals suggest introducing independent confiscation through special laws specifically targeting state crimes against human rights. By limiting the scope to such crimes rather than applying the regime to the entire criminal law system, these proposals seek to enhance the effectiveness of confiscation while avoiding potential difficulties associated with broader application. Independent confiscation serves as an exceptional and supplementary measure to recover illicit proceeds where criminal prosecution is impossible or constrained. Even in cases barred by statutes of limitations or where suspects have died, it allows the state to recover unlawful assets, thereby responding to the public’s sense of justice and reinforcing the demand for accountability. Importantly, it functions not merely as a retrospective measure but as a forward-looking institutional device that holds perpetrators of state violence crimes substantively accountable and strengthens a just criminal justice order through the effective recovery of illicit assets. This paper argues for a legislative policy direction that moves beyond a punishment-centered approach toward a future-oriented criminal paradigm that emphasizes the recovery of criminal proceeds and the restoration of victims, thereby contributing to the realization of substantive justice.