A. Whether the cultural heritage stipulated in Article 2 of the former Cultural Heritage Protection Act (Act No. 2468) is limited to Korea (negative)

(b) Whether the ownership of the accomplice whose indictment has been suspended is subject to confiscation (affirmative);

A. In defining Article 2(a) of the amended Cultural Heritage Protection Act (Act No. 3644), “Korea” was deleted from “those with a high historical or artistic value” under Article 2 of the former Act (Act No. 2468), and the interpretation of cultural heritage under the former Act is not limited to “Korea” unlike the current Act.

B. Since Article 48(1) of the Criminal Code includes “a person who commits a crime” in the territory of “a person who commits a crime,” the property owned by the accomplice as well as the property owned by the accomplice can be confiscated regardless of whether the accomplice is prosecuted or not.

(a) Article 2 of the Cultural Heritage Protection Act; Article 2 of the former Cultural Heritage Protection Act (Act No. 2468);

A. Supreme Court Decision 83Do706 Delivered on July 26, 1983

Defendant 1 and two others

Prosecutor and Defendant

Attorney Presiding over

Seoul High Court Decision 83No935 delivered on July 1, 1983

All appeals are dismissed.

1. Defendant 2's grounds of appeal are examined.

As to the grounds of appeal Nos. 1 and 2

Compared with the trial evidence of the first instance court cited by the court below, it can be found that the facts charged against the defendant were examined, and there is no error of misconception of facts due to violation of the rules of evidence, such as the theory of lawsuit, and it is groundless.

As to the ground of appeal No. 3

As seen above, it is reasonable to view that both Cheongwon-won and Cheongwon-won were manufactured in China (Song, Won) as a whole in the 14th century, and illegally opened the contents under the front sea of the front sea of the 14th century. Thus, it is reasonable to view that the definition of cultural properties under Article 2 of the former Cultural Heritage Protection Act (Act No. 2468) is classified into tangible cultural properties and intangible cultural properties, and intangible cultural properties are classified into tangible cultural properties and intangible cultural properties, and intangible cultural properties are of high historical or artistic value in Korea, and the revised cultural heritage protection Act (Act No. 3644), Article 2 of the new Cultural Heritage Protection Act (Act No. 3644) provides that "The cultural products are of great historical or artistic value as cultural products," and there is no error of law by misunderstanding the legal principles as seen above, and thus, it is reasonable to interpret the existing cultural properties under Article 2 of the former Cultural Heritage Protection Act (Act No. 2468). 378.786.

2. Defendant 3’s defense counsel’s grounds of appeal are examined.

As to the ground of appeal No. 1

Compared with the trial evidence of the first instance court cited by the court below, it can be found that the facts charged against the defendant were examined, and there is no error of misconception of facts due to violation of the rules of evidence, such as the theory of lawsuit, and it is groundless.

As to the ground of appeal No. 2

Since Article 48 (1) of the Criminal Code provides that "a person who commits a crime" includes "a person who commits a crime", it may be confiscated as well as the things owned by the accomplice regardless of whether the accomplice is prosecuted.

그런데 원심은 압수된 금동탄생불 1점, 금동미륵보살반가상 1점, 금동여래입상 1점, 백자양각불상원통기 1점, 백자병 1점(증 제1,2,3,6,7)은 피고인이 원심 공동피고인, 제1심 공동피고인 및 그 소유자인 공소외 인(소재불명으로 기소중지됨)과 공모하여 밀수출하려고 예비하였던 문화재로서 범인 이외의 자의 소유에 속하지 아니한 사실을 인정한 다음 형법 제48조 제1항 제1호 에 의하여 피고인과 원심 공동피고인 으로부터 위 물건들을 몰수한다고 판단하였는바 원심의 그와 같은 조치는 정당하고 거기에 공소외 인이 이건의 공범자가 아니며 또 공범자라 할지라도 그 소유자가 아닌 공범자로부터 몰수할 수 없으며 또한 이건 몰수물이 형법 제48조 제1항 제1호 의 범죄행위에 제공하려고 한 물건이 아니므로 몰수대상이 될 수 없다는 논지는 모두 그 이유가 없고 논지가 지적한 당원의 1974.6.11, 74도352 판결 은 본건에 적절한 것이 못된다.

3. The prosecutor's grounds of appeal against the defendant 1 and 2 are examined.

According to the reasoning of the judgment of the court of first instance cited by the court below, although it is possible to recognize the fact that the defendants shipped 1 points out of Japan and again shipped 1 points out of Japan, there is no evidence to recognize that the gold franchising was produced in the period of unification, and rather, the gold franchising was found not guilty on the ground that the above gold franchising was not a good but a mother, and there is no evidence to prove a crime. The records show that the above measures of the court below are acceptable and there is no error of law of misunderstanding of facts due to violation of the rules of evidence, such as the theory of lawsuit,

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

Justices Kim Young-ju (Presiding Justice)