The case affirming the judgment of the court below which held that in case where the seizure of the article which has waived ownership at the investigation stage was not sentenced to confiscation in the criminal trial, the person subject to seizure may claim its return by civil action against the State.

The case affirming the judgment of the court below that in case where the seizure of the article which has waived ownership at the investigation stage was not sentenced to confiscation in the criminal trial, the person to whom the seizure was made may claim its return by civil action against the State.

Articles 108, 133, and 219 of the Criminal Procedure Act; Article 226 of the Civil Procedure Act (Institution of Lawsuit)

Supreme Court en banc Order 94Mo51 dated August 16, 1996 (Gong1996Ha, 2764) Supreme Court Order 97Mo25 dated April 16, 1998 (Gong1998Ha, 2901)

Plaintiff 1 and one other

Korea

Seoul High Court Decision 99Na55788 delivered on April 25, 2000

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below, after compiling the evidence adopted in its judgment, found the facts that the plaintiffs were not sentenced to forfeiture punishment on the seized article of this case, and found that the plaintiffs were arrested as flagrant offenders in the act of participating in the private horse at the Seoul Horse Racing on November 15, 1997 operated by the non-party development district, and they were seized in the form of voluntary submission by the Suwon District Prosecutors' Office on the same day. At the time, the plaintiffs at the time, who were investigated by the prosecutor, prepare a written confirmation as to whether they renounced ownership of each of the above confiscated article, and submit it to the prosecutor. After the plaintiffs were sentenced to a fine of 3 million won on February 4, 1998 in violation of the Korean Racing Association Act and the judgment became final and conclusive at that time. Since the seizure of this case from the plaintiffs became final and conclusive in a criminal trial without declaration of forfeiture in the criminal trial, they cannot be deemed to have affected the plaintiffs' right to return the seized article of this case as it did not affect the plaintiffs' right to claim restitution of civil procedure.

In light of the records, the above determination by the court below is acceptable, and there is no error in the misapprehension of legal principles as to the effect of the waiver of ownership on the right to return, or in violation of the Supreme Court precedents as to such effect. The legal principles of the Supreme Court en banc Order 94Mo51 dated August 16, 1996 that the waiver of ownership on the seized article does not affect the right to return the confiscated article shall be deemed to have been cancelled because the seizure was not declared in a criminal trial, and the purport of the above en banc Order cannot be applied to this case where the person subject to seizure exercises the right to return the seized article for civil procedure is the same as the case in which the person subject to seizure exercises the right to return.

Therefore, all appeals are dismissed and all costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Yong-woo (Presiding Justice)