(a) In a case where the prosecutor does not make any decision or notification with respect to a request for return of the seized article that is deemed to have been cancelled, whether it is subject to a lawsuit seeking confirmation of illegality of omission;

(b) Whether a lawsuit seeking return of seized articles is permitted for inspection;

A. In the case of a criminal case where a verdict of innocence was rendered and confirmed, the prosecutor is naturally bound to return the seized articles to the presenter, owner, or other right holder in accordance with Article 332 of the Criminal Procedure Act. Since the prosecutor's obligation to return the seized articles is not created only through any disposition such as a decision of return by the prosecutor about the request for return by the right holder, the person subject to seizure or other right holder regarding the seized articles which are deemed to be cancelled is not subject to the lawsuit for confirmation of illegality by omission under the current Administrative Litigation Act, even though the prosecutor has not made any decision or notification with regard to the request for return by the person subject to seizure.

B. A request to a prosecutor for performance of the return of seized articles is not allowed under the current Administrative Litigation Act because of a performance suit which requires an administrative agency to take a certain disposition against the omission of the seized articles.

Article 332 of the Criminal Procedure Act, Articles 2, 3, 4, and 36 of the Administrative Litigation Act

B. Supreme Court Decision 87Nu868 delivered on September 12, 1989 (Gong1989, 1477) 91Nu4126 delivered on February 11, 1992 (Gong192, 1037)

[Judgment of the court below]

Prosecutor of the Seoul District Prosecutors' Office

Seoul High Court Decision 93Gu20803 delivered on September 29, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal by the attorney are examined.

According to the reasoning of the judgment below, the non-party, who purchased the goods of this case from a foreign country on February 6, 1991 and was indicted on charges of violating the Customs Act while returning them, but the judgment was finalized on October 16, 1992 by the Seoul High Court, and the goods of this case were confiscated by the defendant around February 23, 1991 under the pressure 329 of the Seoul District Prosecutors' Office in Seoul, and the above non-party, on May 27, 1992, determined the due date for payment from the plaintiff on July 20 of the same year, and decided that the defendant's request for the return of the goods of this case was not unlawful since the non-party did not have an obligation to return the goods of this case until the due date for payment, but the non-party did not have an obligation to return the goods of this case to the plaintiff on the ground that the defendant did not have an obligation to return the goods of this case to the plaintiff under the provisions of the Criminal Procedure Act. Thus, the court below determined that the above non-party did not have an obligation to return the above goods of this case.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)