몰수·추징의 대상과 한계 및 문제점 - 성매매업소에 대한 징벌적 몰수 판결을 소재로 -

Abstract

According to current law, the following things are objects of confiscation. ① A thing which has been used or was sought to be used in the commission of a crime, ② A thing produced by means of criminal conduct, ③ A thing acquired by means of criminal conduct, ④ A thing received in exchange for above things. Confiscation is also called forfeiture. Even though a judgement of conviction is not rendered against an a accused, confiscation may be ordered when the requisites of confiscation are satisfied. Confiscation shall be imposed in addition to other punishment. When the confiscation is impossible, the equivalent price shall be collected. Namely confiscation or collection is collateral punishment. The conclusion of this article is as follows. Only in case of weakening or counteract the effect of punishing criminal or criminal conduct, it should be done in confiscation and collection. For the purpose of heavy punishing criminal or criminal conduct, it should not be done in confiscation and collection. Because confiscation or collection is collateral punishment. From the point of this view, it is incorrect that the Supreme Court understand collection as punitive collection. And current law allows always confiscating or collecting without consideration of special circumstances. This is incorrect.