Whether the narcotics themselves handled in a narcotics crime constitute "illegal profits" under the Act on Special Cases Concerning the Prevention of Illegal Trafficking in Narcotics (negative), and whether a collection preservation order may be issued to preserve collection of the equivalent value on the premise that the narcotics themselves are included in the property subject to confiscation under Article 13 of the same Act (negative)

In order to issue an order of preservation for collection as prescribed by the Act on Special Cases Concerning the Prevention of Illegal Trafficking in Narcotics (hereinafter “Narcotic Transaction Act”), the pertinent property shall include the property subject to confiscation as prescribed by Article 13 of the Narcotics Transaction Prevention Act (Articles 52(1) and 16), and Article 13 of the Narcotics Transaction Prevention Act stipulates one of the property subject to confiscation as “illegal profits”.

The Act on the Control of Narcotics, Etc. (hereinafter “Narcotic Drugs Control Act”) was enacted to prevent potential misuse or abuse by properly handling and managing narcotics, etc. (Article 1). On the contrary, the Act on the Prevention of Narcotics, Etc. was enacted to promote the suppression and prevention of narcotics crimes and to provide for special exceptions to the Act on the Control of Narcotics, Etc. (Article 1).

Article 2(1) of the Narcotics Transaction Prevention Act defines “narcotics” as “narcotics,” and separately defines “illegal profits” under paragraph (3). The Narcotics Transaction Prevention Act focuses on illegal profits to prevent the re-investment of illegal profits in a new narcotics crime and to thoroughly track and recover illegal profits (Articles 5, 7, 8, 13, and 16), and separately provides for the provisions concerning narcotics, etc. (Articles 3, 4, 6, and 9).

The Narcotics Transaction Prevention Act, in addition to the Narcotics Transaction Prevention Act, stipulates that property that may be confiscated pursuant to the Narcotics Control Act and other Acts and subordinate statutes may be subject to an order of preservation for forfeiture (Article 33(1)), but in the case of an order of preservation for forfeiture, it is limited to cases where collection is to be made in accordance with the Narcotics Transaction Prevention Act (Article 52(1)). The Narcotics Control Act separates “narcotics, etc. provided for in this Act” from “narcotics, etc. provided for in this Act as property that can be confiscated and “proceeds accrued therefrom” (main sentence of

In full view of the legislative purpose, reason for the enactment, regulatory system, etc. of the Narcotics Transaction Prevention Act, it is difficult to deem that the narcotics themselves handled in a narcotics crime constitute illegal profits as prescribed by the Narcotics Transaction Prevention Act. Therefore, the collection preservation order in order to preserve the collection of the equivalent value on the premise that the narcotics themselves are included in the property subject to confiscation as prescribed by Article 13 of the Narcotics Transaction Prevention Act.

Articles 1, 2(1), (2), and (3), 3, 4, 5, 6, 7, 8, 9, 13, 16, 33(1), and 52(1) of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics, Etc., Articles 1 and 67 of the Narcotics Control Act

Defendant

Prosecutor

Seoul High Court Order 2018Ro123 dated November 13, 2018

The reappeal is dismissed.

The grounds of reappeal are examined.

1. In order of collection preservation order under the Act on Special Cases Concerning the Prevention of Illegal Trafficking in Narcotics, Etc. (hereinafter “Narcotic Transaction Act”), the pertinent property shall be included in the property subject to confiscation under Article 13 of the Narcotics Transaction Prevention Act (Articles 52(1) and 16), and Article 13 of the Narcotics Transaction Prevention Act provides for “illegal profits” as one of the property subject to confiscation.

The Act on the Control of Narcotics, Etc. (hereinafter “Narcotic Drugs Control Act”) was enacted to prevent potential misuse or abuse by properly handling and managing narcotics, etc. (Article 1). On the contrary, the Act on the Prevention of Narcotics, Etc. was enacted to promote the suppression and prevention of narcotics crimes and to provide for special exceptions to the Act on the Control of Narcotics, Etc. (Article 1).

Article 2(1) of the Narcotics Transaction Prevention Act defines “narcotics” as “narcotics,” and separately defines “illegal profits” under paragraph (3). The Narcotics Transaction Prevention Act focuses on illegal profits to prevent the re-investment of illegal profits in a new narcotics crime and to thoroughly track and recover illegal profits (Articles 5, 7, 8, 13, and 16), and separately provides for the provisions concerning narcotics, etc. (Articles 3, 4, 6, and 9).

The Narcotics Transaction Prevention Act, in addition to the Narcotics Transaction Prevention Act, stipulates that property that may be confiscated pursuant to the Narcotics Control Act and other Acts and subordinate statutes may be subject to an order of preservation for forfeiture (Article 33(1)), but in the case of an order of preservation for forfeiture, it is limited to cases where collection is to be made in accordance with the Narcotics Transaction Prevention Act (Article 52(1)). The Narcotics Control Act separates “narcotics, etc. provided for in this Act” from “narcotics, etc. provided for in this Act as property that can be confiscated and “proceeds accrued therefrom” (main sentence of Article

In full view of the legislative purpose, reason for the enactment, regulatory system, etc. of the Narcotics Transaction Prevention Act, it is difficult to deem that the narcotics themselves handled in the narcotics crime constitute illegal profits as stipulated in the Narcotics Transaction Prevention Act. Therefore, the collection preservation order in order to preserve the collection of the value on the premise that the narcotics themselves are included in the property subject to confiscation as stipulated in Article 13 of the Narcotics Transaction Prevention Act.

2. The first instance court dismissed the part of the prosecutor’s claim for the collection preservation on the part corresponding to the value of marijuana itself in relation to the Defendant’s act of cutting marijuana to Nonparty 1 or Nonparty 2, on the grounds that it is difficult to view it as the subject of the collection preservation as stipulated in Article 52(1) of the Narcotics Trade Prevention Act, and accepted only the part of the Defendant sold and received marijuana 4 million won, and the lower court upheld the first instance court’s decision.

The lower court is justifiable to have rejected the part corresponding to the value of marijuana itself among the prosecutor’s request for the preservation for the collection of penalties. In so determining, the lower court did not err by misapprehending the legal doctrine on illegal profits, confiscation, or subsequent collection preservation order as otherwise alleged in the grounds of reappeal.

3. The reappeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)