In the case of acquittal, whether only confiscation can be sentenced (negative)

Article 49 of the Criminal Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Defendant

Prosecutor

Daegu District Court Decision 2007No869 Decided May 15, 2007

The appeal is dismissed.

The grounds of appeal are examined.

The proviso of Article 49 of the Criminal Act provides that even if a judgment of conviction is not rendered against an accused, confiscation may be ordered when the requisites for confiscation are met. However, since there is no system that allows only confiscation to be declared separately without institution of public prosecution under our legislation, in principle, in a case of acquittal, unless the facts charged are acknowledged by entering a judgment of substantive nature, it may not be confiscated (see Supreme Court Decision 92Do700 delivered on July 28, 1992).

In the same purport, the court below reversed the judgment of the court of first instance which sentenced a fine of KRW 3 million and a sentence of confiscation against the defendant on the ground that the facts charged in this case constitute a final and conclusive judgment, and did not sentence the sentence of confiscation which was sentenced by the court of first instance while acquitted the defendant, is just, and it did not err in the misapprehension of legal principles as to the omission of judgment on the form of confiscation or addition of confiscation,

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

Justices Kim Hwang-sik (Presiding Justice)