A. Subjective scope of confiscation that affects the effect of confiscation; the relationship between Article 484 of the Criminal Procedure Act and the claim for return of the price by civil action

(a) The effect of confiscation is only derived from the criminal defendant, and does not extend to the owner of the confiscated article that was not the criminal defendant;

B. Article 484 of the Criminal Procedure Act provides that even when a sentence of confiscation deemed to meet the requirements of Article 48(1) of the Criminal Act was executed, if there is a person who has a legitimate right to the confiscated property, the provisions established for remedy, and the legitimate owner of the confiscated property, which does not have the effect of confiscation, does not apply to cases where a legitimate owner of the confiscated property seeks return

Article 184 of the Customs Act (Law No. 2162), Article 48 of the Criminal Act, Article 484 of the Criminal Procedure Act

Supreme Court Decision 70Da245 Delivered on March 24, 1970 (No. 5934, Supreme Court Decision 18Nu civil284 Decided March 24, 197, Supreme Court Decision 48(10)1255 of the Criminal Act

Plaintiff

Korea

Seoul Central District Court (76Gahap2527) in the first instance trial

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

The defendant shall pay to the plaintiff 2,290,000 won with an amount equivalent to five percent per annum from the day following the service of the copy soar to the day of full payment.

The judgment that the lawsuit costs shall be borne by the defendant and provisional execution declaration

The plaintiff's claim is dismissed.

Litigation costs shall be assessed against the plaintiff at all of the first and second trials.

In full view of Gap evidence Nos. 1-2 (Certified Copy of Registry and Copy of Loading Certificate) and evidence Nos. 2 and 3 (Entrustment of Temporary Return of Seized and Seized Articles), and the public auction documents verification conducted by the court below and the whole purport of pleadings, Gap evidence Nos. 1-2 and 2-3 (No. 1 omitted) was originally owned by the plaintiff, and the Seoul District Court's Incheon District Court's branch of Incheon District Court's Incheon District Court's branch of the case against the non-party No. 1, 2, and 3 did not recognize that the above non-party et al. violated the Customs Act No. 1, 200 and the non-party No. 201-200 delivered the above public auction to the non-party No. 30-1 and the non-party No. 20-party et al. al. were removed from the above public auction to the non-party No. 30-party No. 97, which had been declared guilty by the court below's decision No. 1081.

According to the above facts, the above confiscation judgment was pronounced in the judgment of conviction against the above non-party, etc. who was convicted of the facts charged in violation of the Customs Act which caused confiscation. Therefore, it is reasonable to view that only the above non-party, etc. who was the defendant of the above criminal case, but did not have an opportunity to defend in the above criminal case, and it does not affect the plaintiff, who was the owner of the above case. Thus, the defendant executed the above confiscation sentence which is null and void in relation to the plaintiff, and acquired the price of KRW 2,290,00 as a result of the public sale of the above ship owned by the plaintiff. Thus, the defendant is obligated to return the above amount to the plaintiff, barring any special circumstances.

According to Article 484 of the Criminal Procedure Act, when a person who has a legitimate right to the confiscated property requests the delivery of the confiscated property within three months after the execution date, the public prosecutor demanded the delivery of the price acquired by the public sale of the confiscated property or the confiscated property, but the plaintiff's claim for the principal lawsuit was invalidated because the plaintiff did not request the delivery of the price acquired by the public sale of the confiscated property or the confiscated property within the period prescribed by the above provision of the Act, so the plaintiff's claim for the principal lawsuit was invalidated. Thus, the above provision of the Act seems to be, in principle, to be a provision established for remedy if the person has a legitimate right to the confiscated property, even if the confiscated property is deemed to meet the requirements prescribed in Article 48 (1) of the Criminal Act and is executed by the court, and as in this case, if the plaintiff requests the return of the price acquired by the public sale in civil procedure against the defendant, the above provision does not apply. Thus, the defendant's assertion that the above provision is without merit.

Therefore, the defendant is obligated to pay to the plaintiff the above 2,290,000 won and damages for delay at the rate of 5% per annum, which is a civil legal interest rate, from August 8, 1976 to the full payment date, on the record that the plaintiff is the day following the day on which the copy of this case is delivered to the defendant, as requested by the plaintiff. Thus, the plaintiff's claim for this lawsuit is legitimate, and all of them shall be accepted. Thus, the conclusion of the original judgment is identical, the defendant's appeal is dismissed without grounds, and the costs of appeal shall be borne by the losing party. It is so decided as per Disposition.

Judges Osungsung (Presiding Judge)