조직범죄에 대한 형사제재로서의 범죄수익몰수

Abstract

This paper examines confiscation of criminal proceeds as criminal sanction for organized crime. It differentiates from the existing criminal law, that is, special law. The Organized crime is not only a problem that certain countries are having but a major problem that all nations have to deal with. But the effective extermination in such crimes can’t be achieved by the existing criminal sanction, so we should introduce new criminal sanction. From this point of view, this paper analyzes confiscation of criminal proceeds in two aspects; prevention and ex-post sanction. First, to handle prevention aspect, we have devised the bank account tracing. For the purpose of promoting the effect of a search and the possibility of preserving a proof as well as simply figuring out some concealed illegal savings account from the judicial authorities or the financial supervisor committee, this method might be helpful in making it easier to spot the flow of funds. The chase of financial dealings by a national organization, however, could be abused. Therefore, we have legislated ex-post sanction along with confiscation of criminal proceeds such as presumption of illegal proceed & additional collection. The organized crime could gain a huge amount of criminal proceeds and they use them as means of another offense again, it makes a so-called vicious circle. In conclusion, it is important to take not only bankaccounttracing as prevention but also ex-post sanction which good effect and necessary sanction in the confiscation system. Finally, assets forfeiture fund can be considered as a part of restorative justice, which substantially helps criminal victims overcoming a criminal sanction itself. Criminal victims, the weak in the world of criminal law, not only suffer from physical, material damage by offenders, but also psychological, financial damage indirectly by them. In occasion, the secondary damages can more harm the victims. Nevertheless, the existing criminal justice system cannot fully institutionalize the approaches to completely repair their damages. In terms of this, assets forfeiture fund, as a part of restorative justice, can be regarded as an efficient method to secure financial resources for criminal victims such as monetary penalty.