[1] In a case where a request for temporary return is made with respect to seized articles used as evidence, whether the prosecutor shall comply with the temporary return (affirmative in principle), and the standard for determining whether there are special circumstances where the temporary return may be refused

[2] In a case where goods for export directly or indirectly possessed by an offender are seized under the Customs Act, whether such goods belong to a third party’s ownership, whether such goods are subject to requisite forfeiture (affirmative)

[3] Whether the judgment that sentenced confiscation of goods owned by a third party, other than the defendant, affects the ownership of the third party, which was not tried in the case (negative)

[4] In a case where the special judicial police officer of the customs office seized an automobile, which is an article to be loaded after a false export declaration for the purpose of smuggling by the suspect, and is an article to be loaded after the attempted export declaration, based on the search and seizure inspection warrant by the special judicial police officer of the customs office, which is an automobile owned by the corporation A, and was not related to the crime of smuggling export, and the prosecutor refused the claim for provisional return of seized articles by Gap company Gap, and the quasi-appeal was accepted at the court below by filing a quasi-appeal, the case affirming the court below's acceptance of quasi-appeal on the ground that it is difficult to view that the prosecutor's refusal of the claim

[1] Article 218-2(1) of the Criminal Procedure Act provides that “The prosecutor shall return or temporarily return the seized articles which are recognized as unnecessary to continue seizure, such as securing copies, and the seized articles to be used as evidence, if requested by the owner, possessor, custodian, or presenter even before a public prosecution is instituted.” Therefore, a prosecutor shall temporarily return the seized articles used as evidence, unless there are special circumstances that make it possible to refuse temporary return if requested by the owner, possessor, custodian, or presenter. Whether there are such special circumstances should be comprehensively examined and determined by comprehensively examining the various circumstances, such as the appearance and seriousness of the crime, gravity, whether they are subject to confiscation, value of the seized articles as evidence, risk of concealment, destruction or damage of the seized articles, difficulty in the execution of an investigation or a public trial, degree of disadvantage suffered by the person subject to seizure, etc.

[2] Article 269(3)2 of the Customs Act provides that “Any person, etc. who exports goods different from those on which an export declaration was filed, but which are different from the pertinent export goods, shall be punished by imprisonment with prison labor for not more than three years.” Article 282(2) of the Customs Act provides that “in the case of Article 269(3), etc., the goods owned or possessed by the offender shall be forfeited.” Therefore, where the goods directly or indirectly possessed by the offender are seized, such goods shall be subject to necessary confiscation even if they belong to a third party.

[3] In the case of an article owned by a third party other than the defendant, the effect of the judgment that sentenced confiscation shall, in principle, be limited to preventing the defendant from possessing the article in relation to the defendant who was convicted of the facts causing confiscation, and it does not affect the third party's ownership which was not tried in the case.

[4] In a case where the special judicial police officer of the customs office of a vehicle, which is a siren vehicle owned by Gap company, was seized after a false export declaration for smuggling export purposes, was attempted after the suspect filed a false export declaration, and the special judicial police officer of the customs office rejected Gap company's request for provisional return of seized articles, and the prosecutor rejected Gap company's request for provisional return of seized articles by filing a quasi-appeal at the court below, the case affirming the judgment below that the court below erred by misapprehending the legal principles as to the seizure and quasi-appeal under Article 13(2) of the Criminal Procedure Act, based on the following reasons: (a) the vehicle indirectly occupied by the criminal and indirectly owned by Gap company, which is irrelevant to the crime of smuggling export; (b) the confiscation against the criminal is limited to the necessary seizure; (c) the shape and seriousness of the smuggling export crime; (d) the value of the vehicle as evidence; (e) the risk that it might interfere with the investigation or trial execution; and (e) the disadvantage of the Gap company, which is affected by the seizure; and (d) the prosecutor's rejection of quasi-appeal for the purpose of seizure and quasi-appeal.

[1] Article 218-2(1) of the Criminal Procedure Act / [2] Articles 269(3)2 and 282(2) of the Customs Act / [3] Article 48 of the Criminal Act; Article 282(2) of the Customs Act / [4] Article 48 of the Criminal Act; Articles 269(3)2 and 282(2) of the Customs Act; Articles 133(2) and 218-2(1) and (2) of the Criminal Procedure Act

[1] Supreme Court Order 94Mo42 dated August 18, 1994 (Gong1994Ha, 2566), Supreme Court Order 97Mo25 dated April 16, 1998 (Gong1998Ha, 2901) / [3] Supreme Court Decision 99Da12161 Decided May 11, 199 (Gong199Sang, 1143)

Quasi-Appellants

Prosecutor

Incheon District Court Order 2016No3 dated January 13, 2017

The reappeal is dismissed. Of the judgment of the court below, the re-appeal is dismissed. Of the first instance court below's order, the "order" that will be nineth from the first bottom is "the purport of the application", and the "Incheon District Court" that will be fourteenth from the bottom is corrected to the

The grounds of reappeal are examined.

1. A. Article 218-2(1) of the Criminal Procedure Act provides that “The prosecutor shall return or temporarily return any seized articles which are deemed unnecessary to continue seizure, such as securing copies, and articles to be used as evidence, if requested by the owner, possessor, custodian, or presenter, even before a public prosecution is instituted.” Therefore, a prosecutor shall respond to provisional return of the seized articles used as evidence unless there are special circumstances that make it possible to refuse provisional return if requested by the owner, possessor, custodian, or presenter. Whether such special circumstances exist shall be determined by comprehensively examining various circumstances such as the form and seriousness of the crime, seriousness, whether the seized articles are subject to provisional return, the value of the seized articles as evidence, the risk of concealment, destruction, or damage of the seized articles, the degree of disadvantage of the person subject to seizure through seizure, etc. (see Supreme Court Order 94Mo42, Aug. 18, 1994; Supreme Court Order 97Mo25, Apr. 16, 1998, etc.).

B. Article 269(3)2 of the Customs Act provides that “Any person, etc. who exports goods different from those on which an export declaration was filed, but which are different from the pertinent export goods, shall be punished by imprisonment with prison labor for not more than three years.” Article 282(2) provides that “in the case of Article 269(3), etc., the goods owned or possessed by the offender shall be forfeited.” Therefore, where the goods directly or indirectly possessed by the offender are seized, such goods shall be subject to necessary forfeiture even if they belong to a third party.

Meanwhile, in the case of goods owned by a third party other than the defendant, the effect of the judgment that sentenced confiscation is, in principle, to prevent the defendant from possessing the goods in relation to the defendant who was convicted of the facts causing confiscation, and it does not affect the ownership of the third party who was not tried in the case (see Supreme Court Decision 9Da12161 delivered on May 11, 199, etc.).

2. A. The record reveals the following facts.

On March 31, 2016, the Special Judicial Police Officers of the Incheon Customs confiscated the instant vehicle at a container shop of a corporation other than the request for search, seizure, and verification warrant. The instant vehicle is an attempted shipment at the Busan Port after filing a false export declaration in order for the suspects to export the instant vehicle. The instant vehicle was owned by the quasi-Appellant and used as a siren vehicle. There was no relevance between quasi-Appellants and smuggling export crimes.

B. We examine these facts in light of the legal principles as seen earlier.

The instant motor vehicle is an article indirectly occupied by the criminal and belongs to the possession of the quasi-Appellant who is irrelevant to the instant smuggling export crime. As such, the confiscation of the criminal is likely to prevent the criminal from possessing it. In addition, taking into account various circumstances such as the pattern and seriousness of the instant smuggling export crime, the value of the instant motor vehicle as evidence, the risks to be concealed, destroyed, and damaged, the existence of interference with the investigation or trial execution, and the degree of disadvantage of the quasi-Appellant subject to seizure, it is difficult to view the instant motor vehicle as a special circumstance where the prosecutor may refuse the request for provisional return by the owner.

C. However, the lower court, on the ground that the instant automobile was seized only for the purpose of using it as evidence, rendered a decision to accept quasi-appeal pursuant to Article 133(2) of the Criminal Procedure Act. Therefore, the lower court erred by misapprehending the legal doctrine on the application of the applicable provisions to provisional return of seized articles by prosecutors and on the existence of special circumstances of refusal to make provisional return. However, the lower court’s acceptance of quasi-appeal is justifiable in conclusion, and thus, the lower court’s above error does not affect the conclusion of the judgment.

3. Therefore, the reappeal is dismissed, and there is an obvious error in part of the order of the court below, and it is decided to correct ex officio pursuant to Article 25(1) of the Regulation on Criminal Procedure. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-deok (Presiding Justice)