범죄피해재산의 몰수·추징 및 피해자 환부 제도에 대한 비교법적 고찰 - 일본의 피해회복급부금 지급 제도를 중심으로 -

Abstract

Under the current legislation of Korea, confiscation and collection of criminal proceeds relating to victim’s property of predicate offense is prohibited in principle. Exceptions are given in case of certain crimes under the Act on Special Cases concerning the Confiscation and Return of Property Acquired through Corrupt Practices(‘the Act’). Enforcement Decree of the Act stipulates detailed regulations on the process of return of collected criminal assets; the public prosecutor keeping such collected assets decides acknowledged amount of damage by reviewing application for return of the property made by the victim, and gives back such property to them. Upon the amendment of the Act in 2019, confiscation and collection of victim’s property of fraud on multiple victims is allowed, positive effects of freezing criminal proceeds in an earlier stage of investigation and relieving victims efficiently are expected. However, the current system of returning victim’s property is not sufficient for solving acute conflict among victim groups in terms of specifying qualification of victims and their receivable amount. In Japan, confiscation and collection of criminal proceeds relating to victim’s property of predicate offense is generally prohibited as well. Due to the issue on receipt of assets frozen by foreign authority and their return to victims, related legislation were made to enable confiscation and collection of victim’s property of certain crimes including organized fraud. The Act on Issuance of Remission Payment Using Misappropriated Property of Japan regulates conditions of remission payment using collected criminal assets and its process; the public prosecutor establishes the scope of eligible criminal acts, determines entitlement to remission payment and their amount of damage by reviewing application made by the victim, and gives back such property to them. In comparison with Korean system of returning victim’s property, Japanese remission payment system sets up the scope of eligible victim and their receivable amount in a clearer way. In 2008, the public prosecutors office of Japan successfully made recovery of assets amount equivalent to JPY 2.3 billion to over 5,000 victims by using remission payment in an illegal loan case, and continues to conduct this asset recovery practice thereafter. Based on the disclosure made by the public prosecutors office of Japan, I have reviewed several actual cases of remission payment including case on fraud on multiple victims. Through this comparative legal analysis, I have emphasized that it is necessary to take consideration on ideas of insolvency laws and further review on the overall regulation system of proceeds of crime in the process of designing criminal asset recovery system.