기업범죄의 범죄수익에 관한 몰수 및 추징의 실효성 확보방안 (A device on practical insurance of the confiscation and additional collection on the proceeds of crime of the Enterprise-crime)

서지정보

· 발행기관 : 한국비교형사법학회
· 수록지 정보 : 비교형사법연구 / 15권 / 2호 / 339 ~ 362페이지
· 저자명 : 정웅석

초록

Upon application of the United States, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property for forfeiture. Especially, according to criminal Procedure Law of the New York, when the court directs that the defendant be imprisoned until the mandatory surcharge, it must specify a maximum period of imprisonment not to exceed fifteen days. Also, Upon application of the United Kingdom, if the Crown Court imposes a fine on any person or forfeits his recognizance, the court shall make an order fixing a term of imprisonment or of detention under section 108 above (detention of persons aged 18 to 20 for default) which he is to undergo if any sum which he is liable to pay is not duly paid or recovered.
But, If any of the property has been transferred or sold to, deposited with a third party in Korea, the court shall just order the forfeiture of any other property of the defendant up to the value of any property. So, many defendant don't follow the order of the court, even if they have the money to pay.
So, I insist that in default of payment of the forfeiture the offender should be suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may be sentenced or to which he may be liable under a commutation of a sentence. And if the defendant serves a term of imprisonment or detention in default of payment any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect so far as any other method of enforcement should be concerned.

영어초록

Upon application of the United States, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property for forfeiture. Especially, according to criminal Procedure Law of the New York, when the court directs that the defendant be imprisoned until the mandatory surcharge, it must specify a maximum period of imprisonment not to exceed fifteen days. Also, Upon application of the United Kingdom, if the Crown Court imposes a fine on any person or forfeits his recognizance, the court shall make an order fixing a term of imprisonment or of detention under section 108 above (detention of persons aged 18 to 20 for default) which he is to undergo if any sum which he is liable to pay is not duly paid or recovered.
But, If any of the property has been transferred or sold to, deposited with a third party in Korea, the court shall just order the forfeiture of any other property of the defendant up to the value of any property. So, many defendant don't follow the order of the court, even if they have the money to pay.
So, I insist that in default of payment of the forfeiture the offender should be suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may be sentenced or to which he may be liable under a commutation of a sentence. And if the defendant serves a term of imprisonment or detention in default of payment any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect so far as any other method of enforcement should be concerned.

참고자료

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