Whether the confiscation and additional collection of Article 6(1) of the Act on Special Cases Concerning the Confiscation and Restoration of Corruption Property can be made in accordance with the subject and requirements of Articles 3 through 5 of the same Act (affirmative)

Articles 3, 4, 5, and 6(1) of the Act on Special Cases concerning the Confiscation and Restoration of Corruption Property

Defendant

Defendant and Prosecutor

Attorney Cha Jong-chul

Intervenor 1 and two others (Law Firm Boh, Attorneys Boh-soo et al., Counsel for the intervenor-appellant)

Daejeon High Court Decision 2018No119 decided August 10, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

For the reasons indicated in its holding, the lower court reversed the judgment of the first instance that ordered ex officio the intervenors to confiscate or collect corruption property pursuant to Article 6 (1) of the Act on Special Cases concerning the Confiscation and Restoration of Corruption Property (hereinafter “Corruption Property Confiscation Act”) and did not separately sentence the intervenors.

Article 6(1) of the Act on Confiscation of Decomposed Property provides only exceptional reasons for confiscation and collection by stating that “where a crime victim is a property damaged by a crime, and it is deemed that it is extremely difficult to recover the damage, such as that he/she cannot exercise the right to claim a return of property or the right to claim a compensation for damage against the criminal with respect to the property, it may be confiscated or collected.” However, property damaged by a crime is included in perishable property, and in case of perishable property, the subject and requirements of confiscation and collection are specifically prescribed in Articles 3 through 5 of the Act on Confiscation of Decomposed Property. Then, confiscation and collection can be exceptionally imposed on property damaged by a crime under Article 6(1) of the above Act. Thus, confiscation and collection under Article 6(1) of the above Act should also be deemed possible in accordance with the subject and requirements of Articles 3 through

However, in the case of this case, in light of the content and method of the crime committed by the victim with regard to the organization, size, human composition, etc. of the victim, or the flow of the crime victim's property in this case, it is insufficient to view it as constituting "where it is extremely difficult for the victim to recover damage, such as where the victim is unable to exercise his/her right to claim for return of property or claim for damages."

Therefore, although the court below is somewhat insufficient in its reasoning, it is acceptable to take measures that did not confiscate or collect the intervenors as above. Contrary to the allegations in the grounds of appeal, it did not err by misapprehending the legal principles as to the interpretation of Article 6 (1) of the Act on the Confiscation of Decomposed Property, thereby affecting the conclusion

2. As to the Defendant’s ground of appeal

The lower court recognized the instant facts charged as two comprehensive crimes with substantial concurrent relations ex officio with respect to the instant facts charged, which were charged as a single crime, by a prosecutor comprehensively.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the said measures by the lower court are justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on

In addition, examining various circumstances, such as the Defendant’s age, sex, environment, relationship with the victim, motive, means, and consequence of each of the instant crimes, the circumstances after the crime, etc., as indicated in the records, it is difficult to reverse the first instance judgment that accepted the prosecutor’s appeal of unfair sentencing and sentenced the Defendant to 8 years imprisonment with prison labor and sentenced to 10 years imprisonment with prison labor, even if considering the circumstances asserted in the grounds of appeal.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)