CHAPTER I GENERAL PROVISIONS
The purpose of this Act is to eradicate sources of illegality and corruption in the officialdom and to create a corruption-free public sector by prescribing special cases concerning forfeiture, etc. in order to thoroughly pursue and confiscate any unlawful profits, etc. that a person who committed a specific offense by a public official has obtained through such a criminal offense.
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
The definitions of terms used in this Act shall be as follows:
| 1. | The term "specific offense by a public official" means an offense falling under any of the following items (where the relevant offense and another offense are in the nature of imaginative concurrence of offenses pursuant to Article 40 of the Criminal Act, such another offense shall be included): |
| (b) | An offense referred to in Article 355 of the Criminal Act, which a person prescribed in subparagraph 1, 2 or 4 of Article 2 (only applicable to an assistant to a person prescribed in subparagraph 1 or 2 of the same Article who conducts part of such accounting business) of the Act on Liability of Accounting Personnel, etc. has committed with respect to his/her duties even though he/she knows that such an offense will inflict losses on the National Treasury or a local government; |
| 2. | The term "unjust enrichment" means property which a public official has acquired by committing an offense classified as a specific offense by a public official; |
| 3. | The term "property occurring from unjust enrichment" means property accumulated by transformation of or increase in unjust enrichment, such as property acquired as fruit of unjust enrichment, property acquired as the price of unjust enrichment, property as the price of such property, etc. (where unjust enrichment are transformed or increased by being combined with property not related with unjust enrichment, only part of property that results from unjust enrichment shall be applicable); |
| 4. | The term "unlawful property" means unjust enrichment and property occurring from unjust enrichment. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
CHAPTER II SPECIAL CASES CONCERNING EXTENT OF AND REQUIREMENTS FOR FORFEITURE
| Article 3 (Forfeiture of Unlawful Property) |
| (1) | Unlawful property shall be forfeited. |
| (2) | Where it is deemed inappropriate to forfeit property which should be forfeited pursuant to paragraph (1) as a result of taking into consideration the nature of property, the conditions of the use thereof, whether a person other than an offender has a right to such property, and other circumstances, notwithstanding paragraph (1), it need not be forfeited. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 4 (Method of Forfeiture of Property with Which Unlawful Property Has Been Combined) |
Where unlawful property has been combined with property other than unlawful property, when such unlawful property should be forfeited pursuant to Article 3 (1), part falling under the portion of unlawful property of the property that is composed of unlawful property and property other than unlawful property (hereinafter referred to as "mixed property"). [This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 5 (Requirements for Forfeiture) |
| (1) | Forfeiture pursuant to Article 3 shall apply only to where unlawful property or mixed property does not revert to a person other than an offender: Provided, That in cases of an offense referred to in Article 5 of the Act on the Aggravated Punishment, etc. of Specific Crimes among offenses referred to in subparagraph 1 (b) of Article 2 and offenses referred to in item (c) of the same subparagraph, where unlawful property or mixed property is owned by the State or a local government and where a person other than an offender has acquired such unlawful property or mixed property after having committed an offense even though he/she knows such circumstances (excluding cases where he/she acquires property offered in discharge of a legal obligation or he/she has acquired property offered as fulfillment of an obligation related to a contract without knowing the fact that an obligation related to such a contract is fulfilled by means of unlawful property or mixed property as at the time he/she enters into such a contract that provides considerable profits to a creditor), such unlawful property or mixed property may be forfeited even if it has become vested in a person other than an offender. |
| (2) | Where property on which superficies, mortgage or other rights exist is forfeited pursuant to Article 3, where a person other than an offender has acquired such right before committing an offense or where a person other than an offender has acquired such right without knowing such circumstances after having committed an offense, the relevant right shall remain in existence. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 6 (Levying of Penalties) |
Where unlawful property cannot be forfeited or is not forfeited pursuant to Article 3 (2), the value thereof shall be levied as a penalty on an offender. [This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 7 (Verification of Unlawful Property) |
Where the value of property which an offender has acquired after having committed a specific offense of a public official is remarkably high in the light of his/her property investment conditions or conditions of receipt of money paid in accordance with Acts and subordinate statutes, etc. at the time he/she acquires property, and it is considerably probable that such property acquired has been accumulated from unjust enrichment derived from a specific offense by a public official in the light of all the circumstances, such as the amount of unjust enrichment and the time of the acquisition of property, etc., unjust enrichment obtained from a specific offense of a public official may be recognized to have been used for the acquisition of such property.
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
CHAPTER III SPECIAL CASES ON PROCEDURES, ETC. FOR FORFEITURE
| Article 8 (Continuance, etc. of Right of Third Person) |
Where property on which superficies, a mortgage or other rights exist, is forfeited, the court shall pronounce forfeiture and the effect thereof simultaneously if it intends to maintain the relevant right pursuant to Article 5 (2). [This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 9 (Disposition of Property Forfeited) |
| (1) | A public prosecutor shall dispose of property forfeited. |
| (2) | Where a decision on the forfeiture of a claim is made, a public prosecutor shall send to an obligor of such claim an abridged transcript of decision on the forfeiture to advise him/her of the effect thereof. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 9-2 (Levying of Penalties on Unlawful Property, etc.) |
Levying of penalties under Article 6 may be executed on the unlawful property and the property occurring from it which a person other than an offender acquired knowing such circumstances, against such person other than an offender. [This Article Newly Inserted by Act No. 11883, Jul. 12, 2013]
| Article 9-3 (Disposition of Public Prosecutor for Execution of Forfeiture or Levying of Penalties) |
| (1) | Where a public prosecutor recognizes that it is necessary for the execution of forfeiture or levying of penalties pursuant to this law, he/she may conduct the disposition falling under following paragraphs to the minimum extent necessary for such purpose: Provided, That the dispositions prescribed in subparagraphs 4 and 5 against a person other than an offender shall require a warrant under paragraph (3): |
| 1. | Request for attendance and hearing of statement of related persons; |
| 2. | Request for submission of documents or other things by a owner, holder or keeper; |
| 6. | Other request for inquiry about facts or report on necessary matters to public agencies and organizations. |
| (2) | The relevant agencies shall not reject the requests for provision of data under paragraph (1) on the grounds of other acts. |
| (3) | Where it is required for the execution of forfeiture or levying of penalties pursuant to this law, a public prosecutor may conduct a confiscation, search or verification by a warrant requested to and issued by a judge of a district court. |
[This Article Newly Inserted by Act No. 11883, Jul. 12, 2013]
| Article 9-4 (Prescription of Forfeiture or Levying of Penalties) |
Prescription of forfeiture or levying of penalties concerning a specific offense of a public official shall be 10 years, notwithstanding Article 78 of the Criminal Act. [This Article Newly Inserted by Act No. 11883, Jul. 12, 2013]
| Article 10 (Registration, etc. According to Judgment on Forfeiture) |
When a person transfers a right and entrusts the relevant agency with registration, etc. of transfer thereof, etc. according to a decision forfeiting property that requires registration or registry (hereinafter referred to as "registration, etc."), if it falls under any of the following subparagraphs, he/she shall be deemed to have entrusted the cancellation of the relevant registration, etc. also:
| 1. | Where there is registration, etc. related to restrictions on disposition that has lost effect by means of forfeiture, or registration, etc. related to the acquisition of a right that has been extinguished by means of forfeiture; |
| 2. | Where there is registration, etc. related to a preservation order for forfeiture or an incidental preservation order pursuant to Chapter V Section 1 regarding such forfeiture. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 11 (Special Cases on Criminal Compensation) |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 12 (Special Cases on Disposition of Property Forfeited) |
| (1) | Where a decision of the court on forfeiture or on the levying of penalties is issued in connection with an offense referred to in subparagraph 1 (b) of Article 2 or an offense referred to in Article 5 of the Act on the Aggravated Punishment, etc. of Specific Crimes of item (c) of the same subparagraph, a main agent managing the special accounts of the State and a local government that have suffered loss may request the State to pay an amount of money equivalent to the value of loss. |
| (2) | Where the State deems a request referred to in paragraph (1) reasonable, it shall pay an amount of money equivalent to the loss within the extent of the amount of money that has become vested in the National Treasury by means of forfeiture or the levying of penalties in connection with the relevant offense. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
CHAPTER IV SPECIAL CASES ON PROCEDURES FOR PARTICIPATION, ETC. OF THIRD PERSON
| Article 13 (Notification) |
| (1) | When a public prosecutor prosecutes a case, where he/she deems it necessary to confiscate property of a person (excluding the State or a local government) other than the accused or property on which superficies, a mortgage or other rights exist in accordance with this Act, he/she shall notify a person other than the accused (hereinafter referred to as "third person"), as a person who has the relevant property or superficies, a mortgage or other rights thereon, of matters referred to in the following subparagraphs in writing: |
| 1. | A court in which a criminal case against the accused is pending; |
| 2. | The name of a criminal case against the accused and the name of the accused; |
| 3. | The name of an item and quantity of property that should be confiscated and other matters that may define such property; |
| 4. | The important point of a fact that serves as a ground for confiscation; |
| 5. | The effect that a person other than the accused may apply for participation in the proceedings of a criminal case against the accused; |
| 6. | A period in which a person other than the accused may apply to participate; |
| 7. | Where a fixed day for public trial on a criminal case against the accused has been decided, such fixed day for public trial. |
| (2) | Where a public prosecutor is unable to make a notification referred to in paragraph (1) because he/she is unable to ascertain the whereabouts of a third person or for other reasons, he/she shall publish matters referred to in the subparagraphs of paragraph (1) in an official gazette or a daily newspaper and post public notice on the bulletin board of the Public Prosecutors' Office for 14 days. |
| (3) | Where a public prosecutor has made a notification pursuant to paragraph (1) or given public notice pursuant to paragraph (2), he/she shall submit a document proving such a fact to the court. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 14 (Procedures for Participation) |
| (1) | A third person who has property apprehended to be confiscated may file an application for participation in the proceedings of a criminal case in writing with the court in which such a criminal case against the accused is pending until the first trial is held (where a trial is held in accordance with summary proceedings, it means the lapse of a period during which it is possible to demand a formal trial, and in such cases, where a formal trial is demanded, it means the time the first trial is held in accordance with normal procedure in a public trial; hereinafter the same shall apply): Provided, That where notification is given pursuant to Article 13 (1) or public notice pursuant to paragraph (2) of the same Article, the third person may apply for participation within 14 days from the date there is a notification or public notice. |
| (2) | Where a court on which a public prosecutor made notification pursuant to Article 13 (1) or gave public notice pursuant to paragraph (2) of the same Article has transferred a criminal case to another court, when a third person files an application for participation with such a court, the court which receives an application shall send such a written application to another court to which such a criminal case against the accused has been transferred. In such cases, where such a written application is sent, an application for participation in the criminal case against the accused shall be deemed to have been filed with the court to which the criminal case against the accused has been transferred from the beginning. |
| (3) | Where an application for participation of a third person falls under any of the following subparagraphs, the court shall dismiss it: Provided, That where the court recognizes that the reason why an applicant fails to file an application for participation within the period prescribed in the proviso to paragraph (1) is due to reasons not imputable to him/her, the court may permit him/her to participate until it holds the first trial: |
| 1. | Where an application is in violation of a method prescribed in laws; |
| 2. | Where an application is filed after the period prescribed in paragraph (1) has elapsed; |
| 3. | Where it is evident that property that should be confiscated or superficies, a mortgage or other rights existing on property that should be confiscated does not become vested in an applicant. |
| (4) | The court shall permit an application to participate except in cases referred to in the subparagraphs of paragraph (3): Provided, That where it recognizes that a public prosecutor's opinion that confiscation is impossible or unnecessary is appropriate, it may dismiss an application for participation. |
| (5) | Where the court permits participation, when it is evident that property that should be confiscated or superficies, a mortgage or other rights existing on property that should be confiscated does not revert to a person whose participation has been permitted (hereinafter referred to as "participant"), it shall annul a decision that has permitted participation, and where it recognizes that a public prosecutor's opinion that confiscation is impossible or unnecessary is appropriate, it may annul a decision that has permitted participation. |
| (6) | The court shall make a decision on participation after hearing opinions of a public prosecutor, an applicant for participation or participant, the accused or an attorney-at-law. |
| (7) | A public prosecutor, an applicant for participation or participant may make an immediate appeal against a decision dismissing an application for participation or decision that has annulled judgment that permitted participation. |
| (8) | An applicant shall withdraw his/her application for participation in writing: Provided, That he/she may withdraw his/her application verbally on the fixed day for public trial. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 15 (Rights of Participant) |
| (1) | Except in cases where there are express provisions in this Act, a participant shall have the same litigant right to confiscation as that of the accused. |
| (2) | Paragraph (1) shall not interfere with investigating a participant as a witness. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 16 (Attendance, etc. of Participants) |
| (1) | A participant need not attend on a fixed day for public trial. |
| (2) | Where the court does not know the whereabouts of a participant, it need not give notice of a fixed for public trial or send other documents to him/her. |
| (3) | The court shall notify a participant who attends on the fixed day for public trial of the important point of a fact that serves as a ground for confiscation, important matters concerning an inquiry on the fixed day for public trial before participation, and other matters deemed necessary for the protection of his/her rights, and give him/her an opportunity of stating on confiscation. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| (2) | Where the court has investigated a document or statement that may be evidence pursuant to Article 318 and the main sentence of Article 318-3 of the Criminal Procedure Act, when a participant demands the court to investigate a person who has made a statement that became the contents of such a document or statement as a witness, it shall investigate him/her if it deems it necessary for the protection of such rights. The same shall also apply where a participant requests it to investigate a witness again who was investigated before he/she participates. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 18 (Restrictions on Decision on Confiscation) |
Where a third party has not obtained permission to participate, the court shall not hold a trial for confiscation except in cases falling under any of the following subparagraphs:
| 1. | Where 14 days have elapsed from the date a public prosecutor makes a notification pursuant to Article 13 (1) or gives public notice pursuant to paragraph (2) of the same Article: Provided, That where a reason falls under any of the following items, the court shall not hold a trial for confiscation: |
| (a) | Where the court dismisses an application for participation as it is evident that property that should be confiscated or superficies, a mortgage or other rights existing on property that should be confiscated does not become vested in an applicant for participation or participant; |
| (b) | Where the court dismisses an application for participation based on a public prosecutor's opinion that confiscation is impossible or unnecessary; |
| (c) | Where the court annuls a decision that has permitted participation; |
| 2. | Where the court dismisses an application for participation because it violates a method prescribed in the law; |
| 3. | Where an applicant withdraws an application for participation. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| (1) | No participant in the original judgment shall lose the status as a participant in an appellate trial. |
| (2) | If a participant makes an appeal, the part concerning confiscation shall not be decided during the original judgment even if a public prosecutor or the accused does not make an appeal, or abandons or withdraws an appeal. |
| (3) | In cases referred to in paragraph (2), the accused need not attend on the fixed day for public trial in connection with the appellate trial and hearing classes thereafter. In such cases, Articles 33, 282 and 283 of the Criminal Procedure Act shall not apply thereto. |
| (4) | Where a participant demands a formal trial against a trial in accordance with summary proceedings, paragraphs (2) and (3) shall apply mutatis mutandis thereto. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| (1) | A third party who participates in the proceedings of a criminal case against the accused in accordance with this Act may appoint an attorney among attorneys-at-law and have him/her do litigation on his/her behalf. In such cases, Articles 32 (1) and 35 of the Criminal Procedure Act shall apply mutatis mutandis thereto. |
| (2) | Where a participant does not give written consent, an attorney shall not withdraw participation, withdraw a demand for formal trial, abandon or withdraw an appeal. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 21 (Application of Criminal Procedure Act Mutatis Mutandis) |
| (2) | Except in cases where there are express provisions in this Act, the Criminal Procedure Act shall apply mutatis mutandis to procedures for confiscation of property prescribed in Article 13 (1). |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 22 (Relationship with other Procedures) |
A decision that confiscates property prescribed in Article 13 (1) shall not have influence on the right of a third person who was unable to assert his/her right in criminal trial proceedings against the accused for reasons not imputable to him/her. [This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
CHAPTER V PROCEDURES FOR PRESERVATION
SECTION 1 Preservation for Forfeiture
| Article 23 (Preservation Order for Forfeiture) |
| (1) | Where there are reasonable grounds that the court may judge that property falls under property that may be forfeited in accordance with this Act in a criminal case against the accused related to a specific offense by a public official, and the court recognizes that it is necessary for forfeiture of such property, it may issue a preservation order for forfeiture and prohibit disposition of such property at the request of a public prosecutor or by its official authority. |
| (2) | Where the court has issued or intends to issue a preservation order for forfeiture of property on which superficies, a mortgage or other rights exist, when the court recognizes that there are reasonable grounds that such right will be extinguished in accordance with the forfeiture and is necessary for forfeiture of such property, or the court recognizes that there are reasonable grounds that such right is that counterfeited, it may issue an incidental preservation order separately and prohibit the disposition of such right at the request of a public prosecutor or by its inherent jurisdiction. |
| (3) | The name of the accused, the name of an offense, the important point of prosecution, the provisions of Acts and subordinate statutes that are grounds for forfeiture, marking of property or a right the disposition of which is prohibited, the name of a person who has such property or right (where the holder of a title deed is another person, he/she shall be included), the date of issuance, and other matters prescribed by the Rules of the Supreme Court shall be entered in a preservation order for forfeiture or an incidental preservation order, and a judge who has decided on a case shall add his/her signature and seal thereto. |
| (4) | Where an emergency measure is required, the presiding judge may conduct the disposition under paragraph (1) or (2) directly or have a constituent member of the panel of judges conduct such disposition. |
| (5) | No preservation for forfeiture of real property or movable property shall interfere with confiscation under the Criminal Procedure Act. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 24 (Preservation Order for Forfeiture before Prosecution) |
| (1) | Where a public prosecutor recognizes that there is a reason or necessity referred to in Article 23 (1) or (2), he/she may request a judge of a district court and receive the disposition pursuant to paragraph (1) or (2) of the same Article even before he/she prosecutes a case, and a judicial police officer may apply with a public prosecutor and receive the relevant disposition at the request of the public prosecutor. |
| (2) | Where a preservation order for forfeiture or an incidental preservation order has been issued, a judicial police officer shall send a public prosecutor related documents without delay. |
| (3) | A public prosecutor shall make a request pursuant to paragraph (1) to a judge of a district court or its branch court having jurisdiction over the seat of a district public prosecutors' office or its branch office to which a public prosecutor belongs. |
| (4) | A judge who has received a request pursuant to paragraph (1) shall have the same authority concerning the preservation for forfeiture as the court or the presiding judge. |
| (5) | Where a public prosecutor has prosecuted a case after the preservation for forfeiture pursuant to paragraph (1), he/she shall advise a person who has received a preservation order for forfeiture (excluding the accused) of the gist thereof: Provided, That where the public prosecutor is unable to advise him/her of the gist because his/her whereabouts is unclear or for other reasons, the public prosecutor shall post public notice of the gist thereof on the bulletin board of the district public prosecutors' office or its branch office for seven days, in place of notification. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 25 (Execution of Decision on Preservation for Forfeiture) |
| (1) | A decision on preservation for forfeiture shall be executed under the direct ruling of a public prosecutor. |
| (2) | A preservation order for forfeiture may be executed even before a certified transcript of the preservation order for forfeiture is delivered to a person who has property the disposition of which is prohibited in accordance with the order. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 26 (Effect of Preservation for Forfeiture) |
No disposition made on property preserved for forfeiture (hereinafter referred to as "property preserved for forfeiture") after such preservation shall become effective on the forfeiture: Provided, That this shall not apply to cases prescribed in the main sentence of Article 37 (1) (including cases where it is applied mutatis mutandis pursuant to Article 40 (4) and (5)) and the disposition as a foreclosure that may oppose a preservation order for forfeiture. [This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 27 (Preservation for Forfeiture of Real Property) |
| (1) | Preservation for forfeiture of real property shall follow a preservation order for forfeiture that prohibits the disposition thereof. |
| (2) | A certified transcript of a preservation order for forfeiture referred to in paragraph (1) shall be delivered to the owner of real property (where the holder of a title deed is another person, he/she shall be included). |
| (3) | A preservation order for forfeiture on real property shall be executed by means of registration of preservation for forfeiture. |
| (4) | A public prosecutor shall entrust registration referred to in paragraph (3). |
| (5) | Preservation for forfeiture on real property shall become effective when the preservation for forfeiture has been registered. |
| (6) | Where preservation for forfeiture has been registered after provisional disposition for the prohibition of disposition for the preservation of a right of claim for registration on real property was registered, when a creditor of such provisional disposition registers according to the right of claim for registration he/she intends to preserve, no restriction on disposition by registration of the preservation for forfeiture shall have influence on the acquisition or the extinguishment of the right according to registration of such provisional disposition. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 28 (Preservation for Forfeiture of Ships) |
Examples of the preservation for forfeiture on real property shall apply to preservation for forfeiture of a registerable ship, an airplane registered in accordance with the Aviation Safety Act, an automobile registered in accordance with the Motor Vehicle Management Act, and construction machinery registered in accordance with the Construction Machinery Management Act. <Amended by Act No. 14116, Mar. 29, 2016> [This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 29 (Preservation for Forfeiture of Movable Property) |
| (1) | The preservation for forfeiture of movable property (referring to movable property other than that prescribed in Article 28; hereinafter in this Article the same shall apply) shall follow a preservation order for forfeiture that prohibits the disposition thereof. |
| (2) | A certified transcript of a preservation order for forfeiture pursuant to paragraph (1) shall be delivered to the owner of movable property (where the holder of a title deed is third person, he/she shall be included; hereinafter in this Article the same shall apply). |
| (3) | Where a preservation order for forfeiture is issued on movable property not confiscated in accordance with the Criminal Procedure Act or movable property that may be kept by a guard, the owner or a suitable person pursuant to Article 130 (1) of the Act, a public prosecutor shall attach written public notice or give public notice of the details thereof by other appropriate means. |
| (4) | The preservation for forfeiture of movable property shall become effective at the time a certified transcript of a preservation order for forfeiture is delivered to the owner thereof. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 30 (Preservation for Forfeiture of Claims) |
| (1) | Preservation for forfeiture of a claim shall follow a preservation order for forfeiture of a claim that prohibits a creditor (where the holder of a title deed is third person, he/she shall be included; hereinafter in this Article the same shall apply) from disposal and receipt of a claim and an obligor from paying to a creditor. |
| (2) | A certified transcript of a preservation order for forfeiture under paragraph (1) shall be delivered to a creditor and an obligor. |
| (3) | Preservation for forfeiture of a claim shall become effective at the time a certified transcript of a preservation order for forfeiture is delivered to an obligor. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 31 (Preservation for Forfeiture of Other Property Rights) |
| (1) | Except for matters specially prescribed in this Article, examples of the preservation for forfeiture of claims shall apply to the preservation for forfeiture of property rights (hereinafter in this Article referred to as other property rights") other than property prescribed in Articles 27 through 30. |
| (2) | Where no obligor or person corresponding thereto exists (excluding cases referred to in paragraph (3)) among other property rights, the preservation for forfeiture of other property rights shall become effective at the time a preservation order for forfeiture is delivered to the holder of such rights. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 32 (Revocation of Preservation Order for Forfeiture) |
| (1) | Where no reason or necessity exists for the preservation for forfeiture, or a period for the preservation for forfeiture lengthens inappropriately, the court shall revoke a preservation order for forfeiture by decision at the request of a public prosecutor or a person who has property preserved for forfeiture (where he/she is the accused or a suspect, his/her attorney-at-law shall be included) or by its official authority. |
| (2) | Except in cases where requested by a public prosecutor, the court shall hear a public prosecutor's opinion when it makes a decision referred to in paragraph (1). |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 33 (Loss of Effect of Preservation Order for Forfeiture) |
| (1) | When a decision without adjudication of forfeiture (excluding cases pursuant to subparagraph 2 of Article 327 of the Criminal Procedure Act) is made, a preservation order for forfeiture shall lose its effect. |
| (2) | Where a decision of dismissal of prosecution pursuant to subparagraph 2 of Article 327 of the Criminal Procedure Act is made, when a public prosecutor fails to prosecute the relevant case within 30 days from the date such a decision of dismissal of prosecution is made, a preservation order for forfeiture shall lose its effect. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 34 (Measures in Cases Where Preservation for Forfeiture Loses Effect) |
Where the preservation for forfeiture has lost its effect, a public prosecutor shall entrust the cancellation of registration of the preservation for forfeiture, etc. without delay and remove written public notice or take other necessary measures.
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 35 (Restrictions on Compulsory Execution Proceedings on Property Preserved for Forfeiture) |
| (1) | After preservation for forfeiture, where the commencement of a compulsory auction on real property or a ship, airplane, automobile or construction machinery prescribed in Article 28 which became the subject matter of such preservation for forfeiture has been decided, or where corporeal movables which became the subject matter of such preservation for forfeiture have been attached by compulsory execution, procedures for realization by compulsory execution shall not follow unless preservation for forfeiture has lost its effect. |
| (2) | Where an attachment order by compulsory execution is issued on a claim preserved for forfeiture, a creditor of such attachment shall not be able to receive a claim unless preservation for forfeiture on the part preserved for forfeiture among the claims attached loses its effect. |
| (3) | Where a claim attached by compulsory execution after the preservation for forfeiture is conditional or with a deadline, or is related with the performance of a duty to oppose, or is difficult to collect for other reasons, paragraph (1) shall apply mutatis mutandis. |
| (4) | Examples of compulsory execution on claims preserved for forfeiture shall apply to compulsory execution of other property rights (referring to other property rights prescribed in Article 251 (1) of the Civil Procedure Act) preserved for forfeiture. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 36 (Deposit of Third-Party Obligor) |
| (1) | Where an obligor (hereinafter referred to as "third-party obligor") of a claim for the purpose of payment of money (hereinafter referred to as "pecuniary claim") has received delivery of an attachment order by compulsory execution on a claim which became the subject matter of preservation for forfeiture after the relevant claim was preserved for forfeiture, he/she may deposit the total amount of such a claim with a district court or its branch court having jurisdiction over the place of fulfillment of an obligation. |
| (2) | Where a third-party obligor has deposited pursuant to paragraph (1), he/she shall report the reasons therefor to a court that issued a preservation order for forfeiture and a court that issued an attachment order. |
| (3) | Where a third-party obligor has deposited pursuant to paragraph (1), a court of execution shall commence procedures for allotment or repay money on the part equivalent to the amount of a pecuniary claim preserved for forfeiture among the amount deposited when the preservation for forfeiture has lost its effect, and on the remaining part when deposited. |
| (4) | Where a pecuniary claim attached by compulsory execution has been preserved for forfeiture, paragraphs (1) and (2) shall apply mutatis mutandis to the deposit of a third-party obligor. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 37 (Restrictions on Forfeiture of Property Which Became Subject Matter of Compulsory Execution) |
| (1) | A court shall not be held for forfeiture of property attached by decision of the commencement of compulsory auction or compulsory execution before it is preserved for forfeiture: Provided, That if it falls under any of the following subparagraphs, a court may be held for forfeiture: |
| 1. | Where a claim of an execution creditor is counterfeit; |
| 2. | Where an execution creditor applies for compulsory execution even though he/she knows that property is the subject matter of forfeiture; |
| 3. | Where an execution creditor is an offender. |
| (2) | Where a court forfeits property attached by decision of the commencement of compulsory auction or by compulsory execution, which is prohibited from disposing of in accordance with an incidental preservation order as superficies or other rights existing on property subject to forfeiture, before such disposition is prohibited, it shall pronounce the effect that the right thereon shall remain in existence and property is forfeited: Provided, That this shall not apply to cases falling under any of the following subparagraphs: |
| 1. | Where a claim of an execution creditor is counterfeit; |
| 2. | Where an execution creditor applies for compulsory execution even though he/she knows that the right thereon will lapse by forfeiture; |
| 3. | Where an execution creditor is an offender. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 38 (Suspension of Compulsory Execution) |
| (1) | Where a court has issued or intends to issue a preservation order for forfeiture of property attached by decision of the commencement of compulsory auction or by compulsory execution, when it recognizes that there are considerable grounds for judgment that there are grounds prescribed in the proviso to Article 37 (1), it may order the suspension of compulsory execution by decision at the request of a public prosecutor or by its official authority. |
| (2) | When a public prosecutor has submitted a certified transcript of a decision referred to in paragraph (1) to a court of execution, the court of execution shall suspend the compulsory execution. In such cases, when the Criminal Procedure Act is applied, documents referred to in subparagraph 2 of Article 49 of the same Act shall be deemed to have been submitted. |
| (3) | Where preservation for forfeiture has lost effect, a reason referred to in paragraph (1) has disappeared or a period of the suspension of compulsory execution has lengthened inappropriately, a court shall revoke a decision referred to in paragraph (1) at the request of an execution creditor or by its official authority. In such cases, Article 32 (2) shall apply mutatis mutandis thereto. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 39 (Adjustment with Procedure for Auction for Execution of Security Right) |
| (1) | Where a security right that exists on property preserved for forfeiture comes into existence after it is preserved for forfeiture or it is prohibited from disposing of by incidental preservation order, the security right shall not be executed (excluding attachment) unless the prohibition of disposition by preservation order for forfeiture or incidental preservation order loses its effect. |
| (2) | Where an incidental preservation order for a security right is issued after the auction process has commenced for the execution of the security right, when a public prosecutor submits a certified transcript of the order, a court of execution shall suspend the procedure. In such cases, when the Criminal Procedure Act is applied, documents referred to in Article 266 (1) 5 of the same Act (including cases applied mutatis mutandis in Articles 269 and 272 of the same Act) shall be deemed submitted. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 40 (Adjustment with other Procedures) |
| (1) | Where property preserved for forfeiture falls under any of the following subparagraphs, Article 35 shall apply mutatis mutandis to the restrictions on the procedure: <Amended by Act No. 10219, Mar. 31, 2010; Act No. 14476, Dec. 27, 2016> |
| 1. | Where property preserved for forfeiture is attached according to a disposition on default (referring to various procedures for collection under the provisions of the National Tax Collection Act and the Local Tax Collection Act or according to the examples thereof; hereinafter the same shall apply); |
| 2. | In cases of an adjudication of bankruptcy or a decision of the commencement of composition on a person who has property preserved for forfeiture (hereinafter referred to as "adjudication of bankruptcy, etc."); |
| 3. | In cases of a decision of the commencement of procedures for reorganization on a company that has property preserved for forfeiture. |
| (2) | Where a pecuniary claim falls under any of the following subparagraphs, Article 36 shall apply mutatis mutandis to the deposit of a third-party obligor: |
| 1. | Where attachment is made according to the disposition on default on a pecuniary claim preserved for forfeiture; |
| 2. | Where preservation for forfeiture is made for a pecuniary claim attached according to the disposition on default. |
| (3) | Where a pecuniary claim falls under any of the following subparagraphs, Article 36 (1) and (2) shall apply mutatis mutandis to the deposit of a third-party obligor: |
| 1. | Where a provisional attachment occurs in regard to a pecuniary claim preserved for forfeiture; |
| 2. | Where preservation for forfeiture is made for a pecuniary claim attached provisionally. |
| (4) | Where property or a right falls under any of the following subparagraphs, Article 37 shall apply mutatis mutandis to the restrictions on forfeiture of such property: |
| 1. | Where a provisional attachment is made for property which became an object of preservation for forfeiture before it is preserved for forfeiture; |
| 2. | Where a provisional attachment is made for property the disposition of which is prohibited by incidental preservation order as superficies or other rights existing on property subject to forfeiture before such disposition is prohibited. |
| (5) | Where property falls under any of the following subparagraphs, the main sentence of Article 37 (1) shall apply mutatis mutandis to the restrictions on forfeiture of such property: |
| 1. | Where attachment is made according to the disposition on default on property that became the subject matter of preservation for forfeiture before it is preserved for forfeiture; |
| 2. | Where an adjudication of bankruptcy occurs for a person who has property that became the subject matter of preservation for forfeiture before it is preserved for forfeiture; |
| 3. | Where there is a decision of the commencement of procedures for reorganization on a company which has property that became the subject matter of preservation for forfeiture before it is preserved for forfeiture. |
| (6) | Where property falls under any of the following subparagraphs, the main sentence of Article 37 (2) shall apply mutatis mutandis to the restrictions on forfeiture of such property: |
| 1. | Where attachment is made according to the disposition on default on property the disposition of which is prohibited by incidental preservation order as superficies or other right existing on property subject to forfeiture before such disposition is prohibited; |
| 2. | Where there is an adjudication of bankruptcy, etc. on a person who holds a right the disposition of which is prohibited by incidental preservation order as superficies or other rights existing on property subject to forfeiture before such disposition is prohibited; |
| 3. | Where there is a decision of the commencement of procedures for reorganization on a company which has a right the disposition of which is prohibited by incidental preservation order as superficies or other right existing on property subject to forfeiture before such disposition is prohibited. |
| (7) | Where a court has issued or intends to issue a preservation order for forfeiture on property attached provisionally, Article 38 shall apply mutatis mutandis to the suspension of compulsory execution. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 41 (Effect, etc. of Incidental Preservation Order) |
| (1) | An incidental preservation order shall have its effect as long as the effect of the preservation for forfeiture related to such an order continues to exist. |
| (2) | Except in cases prescribed expressly in the provisions in this Act, the provisions on the preservation for forfeiture shall apply mutatis mutandis to the prohibition of disposition by an incidental preservation order. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
SECTION 2 Preservation for Levying of Penalties
| Article 42 (Preservation Order for Levying of Penalties) |
| (1) | Where there are considerable reasons for judgment that a criminal case against the accused related to a specific offense of a public official falls under cases where the levying of penalties should be executed pursuant to Article 6, when a court recognizes that there is a fear that a decision to levy a penalty cannot be executed or that it is remarkably difficult to execute the levying of penalties, it may prohibit the accused from disposing of his/her property by issuing a preservation order for the levying of penalties at the request of a public prosecutor or by its official authority. |
| (2) | Where a court issues a preservation order for the levying of penalties, it shall fix the amount deemed appropriate to preserve for the execution of a decision of the levying of penalties (hereinafter referred to as "amount preserved for the levying of penalties") and then issue the order on the specific property: Provided, That regarding corporeal movables, it need not determine the object thereof specially. |
| (3) | Where a court issues a preservation order for the levying of penalties, it shall fix the amount (hereinafter referred to as "release money from preservation for the levying of penalties") which the accused should deposit for the suspension of execution of a preservation order for the levying of penalties or the cancellation of the disposition of execution thereof. |
| (4) | The name of the accused, the name of an offense, the important point of the fact of prosecution, Articles of Acts and subordinate statutes that are grounds for levying a penalty, an amount of preservation for the levying of penalties, marking of property the disposition of which is prohibited, release money from preservation for the levying of penalties, the date of issue and other matters prescribed by the Rules of the Supreme Court shall be entered in a preservation order for the levying of penalties, and a judge who has made a decision shall add his/her signature and seal thereto. |
| (5) | Article 23 (4) shall apply mutatis mutandis to the preservation for the levying of penalties. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 43 (Preservation Order for Levying of Penalties before Prosecution) |
| (1) | Where a public prosecutor recognizes that grounds and the necessity exist for preservation for the levying of penalties pursuant to Article 42 (1), he/she may request a judge of a district court and receive the disposition prescribed in the same paragraph even before he/she prosecutes a case. |
| (2) | Article 24 (3) and (4) shall apply mutatis mutandis to the preservation for the levying of penalties pursuant to paragraph (1). |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 44 (Execution of Preservation Order for Levying of Penalties) |
| (1) | A preservation order for the levying of penalties shall be executed by order of a public prosecutor. In such cases, an order of a public prosecutor shall have the same effect as a provisional attachment order under the Civil Execution Act. |
| (2) | A preservation order for the levying of penalties may be executed even before a certified transcript of a preservation order for the levying of penalties is delivered to the accused or a suspect. |
| (3) | Except in cases where there are express provisions in this Act, the Civil Execution Act or the provisions of other Acts and subordinate statutes concerning procedures for execution of provisional attachment shall apply mutatis mutandis to the execution of a preservation order for the levying of penalties. In such cases, A court corresponding to a public prosecutors' office to which a public prosecutor who has issued an order pursuant to paragraph (1) belongs shall have jurisdiction over the execution of a provisional attachment over which a court that has issued a provisional attachment order is supposed to have jurisdiction as a court for execution of the provisional attachment. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 45 (Deposit by Obligor of Pecuniary Claim) |
An obligor of a pecuniary claim the preservation for the levying of penalties of which has been executed by preservation order for the levying of penalties may deposit an amount equivalent to such claim. In such cases, the preservation for the levying of penalties shall be deemed to have been executed on the right of claim for payment of deposit.
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 46 (Deposit of Release Money from Preservation for Levying of Penalties and Execution of Decision of Levying of Penalties) |
| (1) | When a decision of the court on the levying of penalties has been made or judgment of provisional payment has been pronounced after release money from the preservation for the levying of penalties was deposited, the levying of penalties or judgment of provisional payment shall be deemed executed within the range of the amount deposited. |
| (2) | Where the levying of penalties has been pronounced, when release money from the preservation for the levying of penalties deposited exceeds the amount of the levying of penalties, a court shall return such an excess to the accused. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 47 (Revocation of Preservation Order for Levying of Penalties) |
Where there is no reason or necessity for preservation for the levying of penalties or a period of preservation for the levying of penalties lengthens inappropriately, a court shall revoke a preservation order for the levying of penalties by decision at the request of a public prosecutor, the accused, a suspect or his/her attorney-at-law or by its official authority. In such cases, Article 32 (2) shall apply mutatis mutandis thereto. [This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 48 (Losing Effect of Preservation Order for Levying of Penalties) |
| (1) | When a decision of the court absenting pronouncement of the levying of penalties (excluding cases pursuant to subparagraph 2 of Article 327 of the Criminal Procedure Act) has been made, a preservation order for the levying of penalties shall lose its effect. |
| (2) | Where a decision of the court on dismissal of prosecution has been made pursuant to subparagraph 2 of Article 327 of the Criminal Procedure Act, Article 33 (2) shall apply mutatis mutandis to the effect of a preservation order for the levying of penalties. |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 49 (Measures Where Preservation Order for Levying of Penalties Loses Effect) |
Where a preservation order for the levying of penalties has lost its effect or release money from the preservation for the levying of penalties has been deposited, a public prosecutor shall revoke an order pursuant to Article 44 (1) expeditiously and take necessary measures for the suspension or the cancellation of execution of the preservation for the levying of penalties by preservation order for the levying of penalties at the same time. [This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
SECTION 3 Supplementary Provisions
Except in cases where there are express provisions prescribed by the Rules of the Supreme Court, the provisons of Acts and subordinate statutes on civil litigation shall apply mutatis mutandis to the delivery of documents concerning preservation for forfeiture or the preservation for the levying of penalties (excluding the execution of the preservation for the levying of penalties by preservation order for the levying of penalties; hereinafter in this Section the same shall apply). In such cases, the effective period of the delivery of public notice prescribed in Article 194 (1) of the Civil Procedure Act, notwithstanding the main sentence of Article 196 (1) and (2) of the same Act, shall be seven days. [This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 51 (Disposition during Period for Appeal) |
Where disposition should be made on the preservation for forfeiture or the preservation for the levying of penalties concerning a case not appealed yet or which was appealed but the records of a lawsuit of which have not reached a court of appeal as a case which occurred during the period for making an appeal, a court of original judgment shall make such disposition.
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
| Article 52 (Application for Dissatisfaction) |
| (1) | A person may make an appeal against a decision of the court on preservation for forfeiture or preservation for the levying of penalties. |
| (2) | Where a person is dissatisfied with the decision by a judge on the preservation for forfeiture or preservation for the levying of penalties, he/she may request the court to which such a judge belongs to revoke or change such decision. |
| (3) | The provisions on procedures related to a request for revocation or change of decision pursuant to Article 416 (1) of the Criminal Procedure Act shall apply mutatis mutandis to procedures for application for dissatisfaction pursuant to paragraph (2). |
[This Article Wholly Amended by Act No. 9812, Nov. 2, 2009]
ADDENDA
| (1) | (Enforcement Date) This Act shall enter into force on the date of its promulgation. |
| (2) | (Transitional Measures concerning Preservation for Forfeiture or Levying of Penalties) The provisions of Chapter Ⅴ shall apply to a bribe that an offender has received in connection to an offense referred to in Articles 129 through 132 of the Criminal Act and Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes committed before this Act enters into force or that a third person who knows the fact has received. In such cases, "this Act" in Article 23 (3) shall be construed as "forepart of Article 134 of the Criminal Act", and "Article 6" in Article 42 (1) shall be construed as "latter part of Article 134 of the Criminal Act," respectively. |
ADDENDA <Act No. 6627, Jan. 26, 2002>
Article 1 (Enforcement Date)
This Act shall enter into force on July 1, 2002.
Articles 2 through 7 Omitted.
ADDENDUM <Act No. 9812, Nov. 2, 2009>
This Act shall enter into force on the date of its promulgation.
ADDENDA <Act No. 10219, Mar. 31, 2010>
Article 1 (Enforcement Date)
This Act shall enter into force on January 1, 2011.
Articles 2 through 12 Omitted.
ADDENDA <Act No. 10698, May 23, 2011>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation. (Proviso Omitted.)
Articles 2 through 11 Omitted.
ADDENDA <Act No. 11883, Jul. 12, 2013>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Article 2 (Applicability)
The amended provisions of Articles 9-2 through 9-4 shall also apply to the cases where proceedings of forfeiture or levying of penalties are in progress at the time this Act enters into force.
ADDENDA <Act No. 14116, Mar. 29, 2016>
Article 1 (Enforcement Date)
This Act shall enter into force one year after the date of its promulgation. (Proviso Omitted.)
Articles 2 through 55 Omitted.
ADDENDA <Act No. 14476, Dec. 27, 2016>
Article 1 (Enforcement Date)
This Act shall enter into force three months after the date of its promulgation. (Proviso Omitted.)
Articles 2 through 5 Omitted.