Defendant

Appellant 1 and 4 others (Law Firm Oyn, Attorneys Lee Jae-ok et al., Counsel for the appellant-appellant)

Suwon District Court Order 2007Hu116 dated May 15, 2008

All of the instant appeals are dismissed.

1. Summary of grounds for appeal;

① Under the Act on Special Cases Concerning the Confiscation of Illegal Political Funds, Etc. (hereinafter “Special Cases Act”), “a third party who acquires the property by a public official through the use of confidential information that he/she has learned in the course of performing his/her duties” under Article 50 of the Act on Prevention of Corruption is not a “person who has committed a crime” under Article 5(1) of the Act on Special Cases Concerning the Prevention of Corruption, or “a person who has knowingly acquired the property after committing a crime,” and thus, it is impossible to take measures for forfeiture and preservation of confiscation, and there is no express statutory provision that enables it. Therefore, each real estate of this case is not subject to confiscation, and it is not subject to preservation, and there was no need for preservation as it is not executed until the day after the judgment on confiscation of each real estate of this case became final and conclusive. Accordingly, the revocation of the order

2. Determination

A. Whether each of the instant real estate is subject to confiscation under the Act on Special Cases Concerning the Ownership of Real Estate

(1) Relevant provisions

【Corruption Act】

Article 50 (Offense of Using Confidential Information)

(1) A public official shall be punished by imprisonment for not more than seven years or by a fine not exceeding 50 million won, when he/she has acquired, or had a third party acquire, goods or property gains using confidential information learned in the

(3) The goods or property gains acquired by a person who commits an offense referred to in paragraph (1) or knowingly acquired by a third party by means of such offense shall be confiscated or additionally collected by the person.

[Special Act]

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "illegal political funds, etc." means property acquired from criminal acts in any of the following crimes (where the relevant crime and other crimes are related to them under Article 40 of the Criminal Act, including such other crimes):

(b) A crime under Article 50 of the Act on the Prevention of Corruption;

3. The term "illegal property" means illegal political funds, etc. and property derived from illegal political funds, etc.

Article 3 (Confiscation of Unlawful Property)

(1) Unlawful property shall be forfeited.

Article 5 (Requirements, etc. for Confiscation)

(1) The confiscation under the provisions of Article 3 shall be limited to cases where the illegal property or mixed property does not belong to the person other than the criminal: Provided, That where a person other than the criminal acquires the illegal property or mixed property with the knowledge of the fact after the crime was committed, the illegal property or mixed property may be confiscated even where it belongs to the person other than the criminal

(2) Determination

In addition, Article 48(1) of the Criminal Act provides that property or property benefits acquired due to the crime of secret use in the line of duty shall be confiscated as necessary. Since the "offenders" includes not only the property owned by the defendant, but also the property owned by the accomplices may be confiscated regardless of whether the accomplices are prosecuted or not. Here, the accomplices include not only the co-principal, the crime of aiding and abetting, but also the persons who are in a necessary accomplice relationship. It cannot be deemed that the accomplices falling under the "offenders" under Article 48(1) of the Criminal Act are limited to the persons who are charged with the crime of guilt, and if they are the accomplices, they are sufficient if they commit the act falling under the accomplices, so such property owned by the accomplices can also be confiscated from the defendant (see Supreme Court Decision 2006Do5586, Nov. 23, 2006).

B. Whether preservation is necessary

According to the records of this case, the Suwon District Court issued an order of preservation for forfeiture on April 4, 2007 each real estate of this case, and the judgment of forfeiture on each real estate of this case against the defendant in violation of the Prevention of Corruption Act against the defendant can be recognized by the Supreme Court on January 31, 2008. However, the confiscation is a disposition that deprives the ownership of the goods related to the criminal act and reverts to the National Treasury, and it cannot be viewed as a civil preservative measure to which the principle of disposition right applies to the property subject to forfeiture. Thus, the fact that the preservation for forfeiture is not executed until now after the judgment of forfeiture became final and conclusive, it is difficult to view that the reason or necessity of preservation for forfeiture does not exist, and there is no other circumstance to deem that the period of preservation for forfeiture has been unfairly extended. Thus, the appellant's above assertion is without merit.

3. Conclusion

Therefore, the appellant's appeal of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jong-tae (Presiding Judge)