Punishment on the Concealment of Cultural Assets and the Possession and Keeping of Stolen Cultural Assets

[19-2 KCCR 90, 2003 Hun-Ma 377, July 26, 2007]

In this case, the Constitutional Court held constitutional the provisions of the Cultural Properties Protection Act punishing the concealment of the stolen cultural assets in spite that the acts such as stealing were unpunishable which had been conducted by other person before the concealment. However, the Court held unconstitutional the provisions which required the obligatory confiscation of the cultural assets concerned and which punished the possession and keeping by the concealer and required obligatory confiscation of the cultural assets when the concealer knew it to have been stolen in spite that the acts such as stealing were unpunishable which had been conducted by other person before the concealment.

Background of the Case

The statutory provisions at issue in this case punishes the acts which was interpreted as unpunishable by a Supreme Court's decision (Supreme Court, 87 Do 238, October 13, 1987). The Supreme Court's decision regarded as unpunishable the preparation to transfer the stolen cultural assets because 'the stolenness in Cultural Properties Protection Act' cannot be recognized in the cultural assets in case that the government cannot exercise the penalty power to the thieves who excavated the cultural assets with no permission due to the completion of the prosecutorial prescription. For this reason, the dealers of cultural assets, the complainants, brought this constitutional complaint claiming that the concerned statutory provisions in this case intrude upon the freedom of occupation, property right and right to equality of the complainants as well as are against the principle of "nulla poena nullum crimen sine lege" and the principle of individual autonomy.

Summary of the Opinions

The Justices were divided 7 to 1 and the majority opinion of the 7 Justices held constitutional the provision of Cultural Properties Protection

Act punishing the concealment of the stolen cultural assets in spite that the acts such as stealing were unpunishable which had been conducted by other person before the concealment. However, the majority opinion held unconstitutional the provision which required the obligatory confiscation of the cultural assets concerned and which punished the possession and keeping by the concealer and required obligatory confiscation of the cultural assets when the concealer knew it to have been stolen in spite that the acts such as stealing were unpunishable which had been conducted by other person before the concealment. The summary of the reasons are as follows.

1. Summary of the Majority Opinion

A.The concerned statutory provision in this case which punishes the concealment of cultural assets provides the concealer of the assets should be punished although the harmful acts of other person before the concealment such as stealing it are not punished in order to suppress the causes of taking cultural assets out of Korean territory and of their illicit traffic. The restriction of private interests caused by the provision is just that one cannot use and dispose of the assets in the way to harm the value of the assets by the specific way of behavior, the concealment, and one can use, fetch profits, and dispose the cultural assets in whatever manner only except for the concealment. Hence, this provision does not intrude upon property right violating the Principle of Proportionality.

B.The concerned statutory provision in this case which punishes the possession and keeping of stolen cultural assets is to prevent the cultural assets from being unlawfully traded out of the government's control and, accordingly, the Legitimacy of Legislative Aims Rule in the Principle of Proportionality is met. However, the concerned provision punished even the case when the concealer knew it stolen regardless of whether there was any possession right according to private law, especially when the concealer came to know it stolen after he had taken the possession right according to private law. This goes beyond the sphere of legislative aim. Considering the fact that the legislative aim stated above could be satisfied by imposing the report duty and registration duty on the possessor and keeper of the assets and by taking sanctions to the

violations, the concerned provision is against the Least Restrictive Means Rule. In addition, it makes the disposal of property right of bona-fide purchaser practically impossible. This is against the Constitution in that it imposes needless and excessive burden by going beyond the social restriction on the individual exercise of property right.

2. Summary of Partial Unconstitutionality Opinion of One Justice

If we applying the concerned provisions in this case to the occasion that the cultural assets lawfully belong to an individual's possession, it results in the situation that the acts of possessing, keeping, and concealing of the property by an lawful owner are criminally punished and the properties become confiscated. It is against the Constitution in that it completely denies the property right of an individual.

Aftermath of the Decision

There was a mass media report saying that the Constitutional Court's decision above would cause enormous turmoil to the legal disputes and suits surrounding the ownership problems of stolen cultural assets in the future (Joins.com July 27, 2007).