[1] In a case where cultural heritage to be confiscated pursuant to Article 80(2) of the Cultural Heritage Protection Act belongs to a third party, other than the defendant, whether it should be forfeited, regardless of its good faith or bad faith (affirmative)

[2] The validity of the judgment that sentenced forfeiture of goods owned by a third party other than the defendant

[1] Article 80 (2) of the Protection of Cultural Properties Act provides that a person who does not export or take out, or take out, any cultural property overseas in violation of Article 76 (1) of the same Act shall be punished by imprisonment for a limited term of not less than three years, and the said cultural property shall be confiscated. The confiscation under the above provision is a special provision for the confiscation stipulated by the general provisions of the Criminal Act, and even if the cultural property to be confiscated belongs to a third party other than the defendant, it shall be confiscated if it is necessary regardless

[2] In light of the fact that the confiscation under the criminal law is a sentence to be sentenced in addition to other punishment in the judgment of conviction against the defendant who is under a criminal trial, the effect of the judgment of confiscation on the goods owned by a third party other than the defendant is to prevent the defendant from possessing the goods in relation to the facts which caused the confiscation, and it does not affect the third party's ownership which was not tried in the case.

[1] Article 80(2) of the Cultural Heritage Protection Act, Article 48(1) of the Criminal Act / [2] Article 211 of the Civil Act, Article 48(1) of the Criminal Act

[1] Supreme Court Order 92Mo22 delivered on September 18, 1992 (Gong1992, 3178) / [2] Supreme Court Decision 64Do653 delivered on February 23, 1965 (No. 13-1, 15) Supreme Court Decision 66Da1703 delivered on December 27, 1966 (No. 14-3, 367), Supreme Court Decision 69Da2051 delivered on February 10, 1970 (No. 18-1, 83), Supreme Court Decision 70Da245 delivered on March 24, 1970 (No. 18-1, 284)

Kim Tae-tae

Korea

Seoul High Court Decision 98Na33477 delivered on January 27, 1999

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Article 80(2) of the Protection of Cultural Properties Act provides that a person who exports or takes out cultural properties abroad, or does not take them back again in violation of Article 76(1) of the same Act shall be punished by imprisonment for a limited term of not less than three years and the said cultural properties shall be confiscated. The confiscation under the above provision is a special provision for confiscation stipulated in the general provisions of the Criminal Act, and even if the cultural properties to be confiscated belong to a third party other than the defendant's owner, it is necessary regardless of its good faith or bad faith. The confiscation under the Criminal Act is contrary to the assertion in the grounds of appeal. However, the confiscation under the Criminal Act is a type of punishment sentenced in addition to other punishment in addition to the judgment of conviction against the defendant who is under criminal trial as to the facts charged, the effect of the judgment of confiscation is to prevent possession of the objects in principle in relation to the defendant who was convicted of the facts causing the confiscation, and it does not affect the ownership of the third party who was not tried (see Supreme Court Decision 70Da2455, Mar. 24, 1970).

In this case, the cultural property of this case was purchased from the order of Ansan on April 1990 and was released from Japan around June 16 of the same year, and the plaintiff purchased it from Japan on May 16, 1994. Accordingly, the prosecutor prosecuted Non-party 1 as the violation of the Cultural Heritage Protection Act and sentenced to forfeiture of the cultural property of this case as well as guilty. Thus, the above criminal judgment that confiscated the cultural property of this case does not affect the plaintiff.

The judgment of the court of first instance cited by the court below was somewhat different in its reasoning, but its conclusion that the above criminal judgment which sentenced confiscation of the cultural heritage of this case does not affect the plaintiff is just, and there is no error in the misapprehension of the legal principles as alleged in the grounds of appeal. Therefore, the grounds of

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

Justices Shin Sung-sung (Presiding Justice)