[1] Whether the exported object without permission under Article 19 of the former Foreign Exchange Control Act may be confiscated pursuant to Article 33 of the same Act (negative), and whether it may be confiscated pursuant to Article 48 of the Criminal Act (affirmative)

[2] Whether the confiscation and collection under Article 48(1)1 and (2) of the Criminal Code belong to the court's discretion (affirmative)

[3] The case holding that the court below erred in finding that land development bonds offered for an attempted export without permission under the former Foreign Exchange Control Act are not subject to confiscation and collection pursuant to Article 48 of the Criminal Code, but it is justified in conclusion that the court below did not collect the value in consideration of the nature and ownership of the above bonds, the impact of the export of the above bonds on the national economy

[1] In a case where the defendant was found to have carried and attempted to depart from a foreign country without permission as prescribed in Article 19 of the former Foreign Exchange Control Act (amended by Act No. 5453 of Dec. 13, 1997), the above claim shall not be deemed to have been acquired only due to an attempted export without permission. Thus, the above claim shall not be deemed to have been confiscated or collected in accordance with Article 33 of the former Foreign Exchange Control Act. However, the above claim shall not be deemed to have been provided for an attempted export without permission. However, the above claim shall be deemed to be subject to confiscation or collection in accordance with Article 48 (1) 1 and (2) of the Criminal Act.

[2] Since confiscation and collection under Article 48(1)1 and (2) of the Criminal Code are discretionary, the issue of whether collection should be made even if it meets the requirements for collection is left to the court's discretion.

[3] The case affirming the conclusion that the court below erred in holding that the above claim is not subject to confiscation and collection under Article 33 of the former Foreign Exchange Control Act and is not subject to confiscation and collection under Article 48 of the Criminal Code, but it is not subject to confiscation and collection under Article 48 of the Criminal Code, and that the confiscation and collection under Article 48 of the Criminal Code is arbitrary, and the above claim's nature and ownership relation, the export of the above claim affects the national economy, etc.

[1] Article 19 (see current Article 17 of the Foreign Exchange Control Act), Article 31 (1) 4 (see current Article 27 (1) 9), Article 31 (2) (see current Article 27 (2) of the Foreign Exchange Transactions Act), Article 33 (see current Article 30 of the Foreign Exchange Transactions Act), Article 48 (1) 1 and (2) of the Criminal Act / [2] Article 48 (1) 1 and (2) of the Criminal Act / [3] Article 48 (3) of the Criminal Act, Article 19 (see current Article 17 (1) 9), Article 31 (2) (see current Article 27 (2) of the Foreign Exchange Transactions Act), Article 33 (see current Article 30 (1) 1 and (2) of the Foreign Exchange Transactions Act, Article 48 (1) 1 and (2) of the Criminal Act, Article 31 (2) of the former Foreign Exchange Transactions Act (see current Article 30 (2) of the Foreign Exchange Transactions Act)

[1] Supreme Court Decision 87Do82 delivered on August 9, 198 (Gong1988, 1217) Supreme Court Decision 98Do4262 delivered on December 21, 1999

Defendant

Prosecutor

Attorney Jeong-won

Seoul District Court Decision 99No8056 delivered on January 18, 2000

The appeal is dismissed.

In this case, the defendant's land development claim owned by him without permission under Article 19 of the former Foreign Exchange Control Act (amended by Act No. 5453, Dec. 13, 1997; hereinafter the same) is discovered to be departing from Japan and attempted, the above claim shall not be deemed to be acquired only due to an act of attempted export without permission, so it shall not be deemed to constitute an act of attempted export, so it shall not be confiscated or collected additionally pursuant to Article 33 of the former Foreign Exchange Control Act (refer to Supreme Court Decisions 87Do82, Aug. 9, 198; 98Do4262, Dec. 21, 199; hereinafter the above claim shall be deemed to constitute an act of attempted export without permission of the defendant, and therefore, it shall be deemed to be subject to confiscation or collection under Article 48 (1) 1 and (2) of the Criminal Act (refer to Supreme Court Decision 200Do4282, Dec. 26, 199).

Unlike this, the court below held that the above claim is not subject to confiscation or collection under Article 33 of the former Foreign Exchange Control Act, and it does not be subject to confiscation or collection under Article 48 (1) 1 and (2) of the Criminal Act.

However, since the collection under Article 48 (1) 1 and 48 (2) of the Criminal Code is voluntary, the issue of whether it should be collected even if it meets the requirements for the collection is left to the discretion of the court. However, the fact that the court of first instance maintained by the court below did not collect the value of the above claim which became impossible to be confiscated can be seen as a result of exercising the discretionary power as above even if the claim is subject to voluntary confiscation. Meanwhile, considering the motive and circumstance of the crime in this case, the nature and ownership of the above claim, and the impact of the export of the above claim on the national economy, it is not considered that the first instance court's measure which did not collect the value of the claim in this case falls under "when there is a reason to find that the amount of the claim in this case is unreasonable." Thus, the conclusion of the court below that dismissed the prosecutor's appeal is justified, and the judgment of the court below did not affect the conclusion of the judgment. The ground of appeal on this point is without merit.

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

Justices Kim Ji-dam (Presiding Justice)