외국환거래법상 필요적 몰수·추징 규정에 관한 몇가지 고찰

Abstract

The regulation of the Foreign Exchange Transactions Act which states that the illegal remittance toward Korea from a non-resident without a declaration during a capital transaction of more than the amount set by the presidential order has to be compulsorily confiscated and charged is a violation of the Constitution since it violates the excess prohibition principle of the Second Clause of Article 37 of the Constitution since it goes against the principle of minimum violation by markedly deviating from the necessary degree when it comes to satisfying the original functions and objective of punishment, excessively infringes the private ownership of property guaranteed by the Constitution without any rational ground, and immoderately limits the judge's right to decide the weighing of an offense. Thus, the aforementioned regulation should remove the confiscation and collection regulation or be amended as random confiscation and collection as soon as possible. The fact that the Supreme Court is acknowledging the collective responsibility of confiscation with regard to all accomplices who had not even acquired the targets of confiscation by interpreting the necessary confiscation and collection regulation of the special law as 'punitive' goes against the principle of legality since it has gone past the limit of judicial groundless interpretation. Such a way of conducting collection violates the criminal law's individual responsibility principle and in some cases fades the meaning of imposing punitive character of collection. Therefore, the attitude of the Supreme Court acknowledging the collective responsibility of confiscation while interpreting the necessary confiscation and collection regulation of the Foreign Exchange Transactions Act as a punitive collection should immediately be corrected. Even if the ruling by the Supreme Court with regard to it is adamant, change of ruling should not be feared and the principle of law of a new ruling should be organized as soon as possible.