민사몰수제도의 도입에 관한 연구

Abstract

Originally, forfeiture was used only to take out the instruments used for committing crimes from offenders. When it was discovered that criminals had received benefits from criminal conduct, the government tried to encompass direct and indirect benefits in the list of forfeitures. However, criminal forfeiture was proved to be inefficient for deterring crimes, because its scope was limited to certain instruments or benefits derived from criminal conduct for which the criminals had been convicted. This flaw and failure of criminal forfeiture forced the international society to try to create a new program of forfeiture, generally known as non-conviction based asset forfeiture. It would be easier to freeze and forfeit the property from criminals because it was no longer necessary to prove that there was any criminal conviction regarding the property. In addition, several nations began to introduce more aggressive means for confiscating the proceeds of crime, which was civil forfeiture. Since drug-related crimes flourished and the money laundering business widely spread, many jurisdictions needed to cooperate to prevent illegal money from flowing across borders and being invested to more profitable criminal business. While legislating Proceeds of Crime Acts(POCAs), the international society recommended to set forth a civil forfeiture program the object of which was to retain suspicious proceeds of crime and to use it for good causes. Furthermore, developing nations needed to recover the assets stolen by dictators or corrupt officials who embezzled national assets for individual purposes. Proceeds of crime have accordingly various shapes which were obstructing the fair and sound development of a global economy. For this reason, prosecuting authorities from different jurisdictions must be united in setting forth very effective and creative measures for taking profits from the hands of criminals. Different rules and procedures should not be obstacles for this paramount project. We need to lower the standard of proof in civil forfeiture if it is necessary, and private sector institutions such as banks must report any suspicious transactions in order to assist law enforcement agencies.