B. In the case of Article 180(1) and (2), Article 181, or Article 186 of the Customs Act, whether the goods possessed by an offender are owned by a person or should be forfeited without asking the owner’s good faith or bad faith (affirmative)

(c) The case holding that since the freight on a bill of lading is deemed to be under the possession of a carrier until it is delivered to a legitimate right holder, it cannot be deemed that the seized article is under the possession of a suspect regardless of the control of a carrier on the ground that the suspect voluntarily performed the work of unloading the seized article for customs clearance and storing it in the general bonded storage place

D. The standard of determining whether seizures to be used as evidence under Article 133(1) of the Criminal Procedure Act, which is applied mutatis mutandis by Article 219 of the same Act, should be provisionally returned

B. In the case of Article 180(1) and (2), Article 181, or Article 186 of the same Act, insofar as the main text of the same Article provides that goods owned or possessed by an offender shall be forfeited, it shall be interpreted that the goods possessed by an offender should be forfeited in relation to the offender, regardless of who is the owner’s good faith or bad faith, regardless of who is the owner’s possession.

(c) The case holding that since the freight on a bill of lading is deemed to be under the possession of a carrier until it is delivered to a legitimate right holder, it cannot be deemed that the seized article is under the possession of a criminal suspect regardless of the control of a carrier on the ground that the criminal suspect voluntarily performed the work of unloading the seized article for customs clearance and storing it in the general bonded warehouse

D. Whether to temporarily return seized articles to be produced as evidence under Article 133(1) of the Criminal Procedure Act, which is applied mutatis mutandis by Article 219 of the same Act, should be determined by comprehensively examining various circumstances, such as the appearance and seriousness of the crime, the value of the seized articles as evidence, the concealment, destruction, risk of damage, the existence of interference with the investigation or trial execution, the degree of disadvantage of the person to whom the seized articles are seized, etc.

On the first ground for appeal

According to the reasoning of the court below's order, the court below held that the re-appellant holding a bill of lading for the seized article of this case, based on the facts as stated in its holding, has the right to claim the return against the above seized article, but it cannot be viewed as an indirect possession under the Civil Act. Thus, the re-appellant cannot be viewed as an possessor of the seized article of this case, and considering the circumstances as stated in its holding, the suspect is regarded as an possessor of the seized article of this case. Thus, the seized article of this case constitutes a crime of evading customs duties or an unauthorized import without permission, which is a suspected fact

The confiscation stipulated in Article 198(2) of the Customs Act is a special provision for confiscation of the General Provisions of the Criminal Act, and it is necessary (see Supreme Court Decision 73Do2625 delivered on June 22, 1976). In the case of Article 180(1) and (2), Article 181 or Article 186 of the same Act, which is the main provision of the same Article, the goods owned or possessed by the criminal shall be confiscated, so long as the goods possessed by the criminal are stipulated that they are confiscated, regardless of who owns them, they shall be confiscated in good faith or bad faith with the owner (see Supreme Court Decision 64Do653 delivered on February 23, 1965; Supreme Court Decision 66Da1703 delivered on December 27, 196; Supreme Court Decision 200Da16509 delivered on February 10, 197). Thus, the Re-Appellant's possession of those goods subject to confiscation should be interpreted as those owned by the suspect.

However, according to the records, at the time of the seizure of this case, the seized articles of this case were unloaded by the suspects after their arrival at Incheon Port and stored in the bonded storage room of the Incheon Customs Office, and the freight on the bill of lading is deemed under the possession of the carrier until delivery to the lawful right holder. Thus, it is difficult to conclude that the circumstances alone do not lead to the possession of the seized articles of this case even if the suspect committed an act identical to the time of the original adjudication, even if the seized articles of this case were not under the possession of the suspect regardless of the control of the carrier (see Supreme Court Decision 91Da4249, Feb. 14, 1992).

Nevertheless, while recognizing facts as stated in its holding, the court below's decision that recognized the suspect as the possessor of the seized article in this case and ruled that the seized article is subject to the necessary confiscation shall have affected the conclusion of its decision by misunderstanding the legal principles on confiscation.

On the second ground for appeal

Whether or not to temporarily return the seized articles to be produced as evidence under Article 133 (1) of the Criminal Procedure Act which is applied mutatis mutandis by Article 219 of the same Act shall be determined by comprehensively examining various circumstances, such as the appearance and seriousness of the crime, the value of the seized articles as evidence, the concealment, destruction, risk of damage, the obstruction of the investigation or public trial, the degree of disadvantage of the person to whom the seized articles are seized, etc.

According to the records, there are data such as the time of original adjudication which can peep the suspect's suspicion, on the other hand, the document sent out (154, 160 pages) in the name of preparation of a refacing limited liability company which is bound in the records, the certificate of inspection (155,156,162,163 pages) and certificate of mountainous district (157,161 pages), copy of fee contract between the suspect A and B (287 pages of investigation records), copy of receipt prepared by C (290 pages of investigation records), C's passport (292 pages of investigation records), and written statement (352 pages of investigation records) prepared by C which did not believe that the seized materials of this case were North Korea, but doubt that the seizure materials of this case were not recorded in North Korea, and it can be easily known that the public prosecutor or prosecutor of this case had the possibility of being subject to prosecution and seizure until the time of realization of this case was investigated.

Therefore, it seems that there is no hindrance to the investigation even if the seized article is temporarily kept in custody, and as long as the seized article of this case is kept in custody, it is not necessary to keep it in custody only with an investigation agency. The re-appellant is unlikely to submit the proceeds of the seized article of this case as the financial institution is, there is little risk that it is impossible for the re-appellant to submit them.

Ultimately, the court below dismissed the Re-Appellant's quasi-appeal under the judgment that the proceeds of the instant seized articles need to be temporarily returned, although the court below decided that the instant seized articles cannot be subject to provisional return. The allegation has merit.

Therefore, the order of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-ju (Presiding Justice)