ACT ON SPECIAL CASES CONCERNING THE CONFISCATION AND RETURN OF PROPERTY ACQUIRED THROUGH CORRUPT PRACTICES
Act No. 8993, Mar. 28, 2008
Amended by Act No. 11690, Mar. 23, 2013
Act No. 14410, Dec. 20, 2016
Act No. 15022, Oct. 31, 2017
CHAPTER I GENERAL PROVISIONS
The purpose of this Act is to contribute to the prevention and eradication of corruption offenses and the establishment of integrity and proper order in the international community through the eradication of the economic factors that foster such corruption offenses by providing for the confiscation and return of property acquired through corrupt practices, or the collection of an equivalent value thereof, in the special cases established under this Act, with a view to the efficient implementation of the United Nations Convention against Corruption and other relevant international agreements.
The terms used in this Act are defined as follows: <Amended by Act No. 14410, Dec. 20, 2016>
| 1. | The term "corruption offense" means any of the predicate offenses prescribed in the attached Table committed with the purpose of obtaining by unlawful or unjust means any corporeal or social gains, or to aid or abet another in obtaining the same; |
| 2. | The term "property acquired through corrupt practices" means proceeds of crime or property derived from proceeds of crime: |
| (a) | The term "proceeds of crime" means property derived from the act of committing a corruption offense or property acquired as compensation for such act; |
| (b) | The term "property derived from proceeds of crime" means property acquired as the fruit of proceeds of crime, property acquired as a consideration for proceeds of crime, and property acquired as a consideration for these properties, or property acquired through the holding or disposal of proceeds of crime; |
| 4. | The term "property subject to execution, etc." means property or the value of such property which is the subject of cooperation in any of the following cases: |
| (a) | Where a foreign state makes a request for mutual assistance to preserve property for the execution of a final and conclusive judgment of confiscation or the collection of an equivalent value thereof or the said confiscation or collection; |
| (b) | Where a request for cooperation is made to a foreign state to preserve property for the execution of a final and conclusive judgment of confiscation or the collection of an equivalent value thereof or the said confiscation or collection; |
| 5. | The term "requesting State" means a state requesting cooperation of the Republic of Korea to preserve property in connection with a criminal case relating to an act constituting a corruption offense for the execution of a final and conclusive judgment of confiscation or the collection of an equivalent value thereof or the said confiscation or collection. |
CHAPTER II CONFISCATION OF PROPERTY ACQUIRED THROUGH CORRUPT PRACTICES OR COLLECTION OF EQUIVALENT VALUE THEREOF
| Article 3 (Confiscation of Property Acquired through Corrupt Practices) |
| (1) | Property acquired through corrupt practices may be confiscated: Provided, That if other statutes or regulations require the confiscation of property acquired through corrupt practices, such property shall be confiscated in accordance with that statutes or regulations. |
| (2) | If property acquired through corrupt practices to be confiscated pursuant to paragraph (1) is commingled with any property other than property acquired through corrupt practices, the portion equivalent to the ratio of the property acquired through corrupt practices to the property resulting from the intermix of the property acquired through corrupt practices and any other properties (hereinafter referred to as "commingled property") may be confiscated. |
| Article 4 (Requisites for Confiscation, etc.) |
| (1) | Confiscation under Article 3 shall be limited to cases where property acquired through corrupt practices or commingled property does not belong to any person other than the offender: Provided, That if after the offense is committed, a person other than the offender obtains property acquired through corrupt practices or commingled property, while knowing of the offense (excluding cases where the acquisition of property acquired through corrupt practices or commingled property falls under the proviso to Article 4 of the Act on Regulation and Punishment of Criminal Proceeds Concealment), such property acquired through corrupt practices or commingled property may be confiscated even in cases where such property belongs to a person other than the offender. |
| (2) | If property acquired through corrupt practices or commingled property belongs to a person other than the offender by inheritance or gift without consideration, or at a significantly low price, the whole or part of the property acquired through corrupt practices or commingled property may be confiscated even in cases where the person did not know of the offense when he/she acquired such property. |
| (3) | In cases where property over which a surface right, a mortgage, or any other right or incumbrance exists is confiscated pursuant to Article 3, such right or incumbrance shall continue to exist where a person other than the offender acquired such before the commission of the offense or did not know of the offense when he/she acquired such after the commission of the offense. |
| Article 5 (Collection of Equivalent Value) |
| (1) | In cases where it is impossible to confiscate property acquired through corrupt practices or it is determined inappropriate to confiscate such property due to the nature of the property, the current use of the property, a right held over the property by a person other than the offender, or other circumstances, the equivalent value of the property shall be collected from the offender. |
| (2) | Paragraph (1) shall apply mutatis mutandis to the collection of an equivalent value from any person other than the offender under Article 4 (1) or (2). |
| Article 6 (Special Cases concerning Property of Victims of Predicate Offenses) |
| (1) | If property under Article 3 is the property of the victim of a predicate offense but it is deemed exceedingly difficult for the victim of the predicate offense to recover damages because he/she is not able to exercise his/her right against the offender seeking return of the property or compensation for his/her damages on the property, such property may be confiscated or an equivalent value thereof may be collected. |
| (2) | The property of the victim of a predicate offense, which has been confiscated or an equivalent value of which has been collected pursuant to this Act, shall be returned to the victim. |
| (3) | Matters necessary for the return of the property of the victim of a predicate offense, such as the conditions and procedures for the return of the property, and other relevant matters, shall be prescribed by Presidential Decree. |
CHAPTER III PROCEDURE FOR INTERNATIONAL COOPERATION RELATING TO PROCESS FOR PRESERVATION OF CONFISCATION OR COLLECTION OF EQUIVALENT VALUE AND EXECUTION AND PRESERVATION OF JUDGMENTS OF CONFISCATION OR COLLECTION OF EQUIVALENT VALUE
| Article 7 (Facilitation of International Cooperation) |
Whenever a foreign state requests the return of property subject to execution, etc. in relation to a criminal case of an act constituting a corruption offense in the foreign state, cooperation may be provided for such request, except for those cases falling under any of the following subparagraphs:
| 1. | Where an act involved in the offense for which cooperation is requested was committed within the territories of the Republic of Korea and it is held that the act does not constitute a corruption offense under relevant statutes or regulations of the Republic of Korea; |
| 2. | Where the requesting State has not made a guaranty to the extent that it will accept and respond to a request for cooperation of the same kind if the Republic of Korea makes such a request; |
| 3. | Where the requesting State has not made a guaranty that the property subject to execution, etc. will be conveyed to the original owner of the property subject to execution, etc., the victim of the offense, or any other person who has a legitimate right; |
| Article 8 (Application Mutatis Mutandis of Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics) |
CHAPTER IV SPECIAL CASES AND PROCEDURE FOR RETURN OF PROPERTY ACQUIRED THROUGH CORRUPT PRACTICES
| Article 9 (Receipt of Request for Return and Delivery of Property Subject to Execution, etc.) |
The receipt of a request for return and the delivery to a requesting State of property subject to execution, etc. shall be carried out by the Minister of Foreign Affairs: Provided, That if circumstances require an emergency action or exceptional circumstances exist, the Minister of Justice may carry out such disposition, subject to the prior consent of the Minister of Foreign Affairs. <Amended by Act No. 11690, Mar. 23, 2013>
| Article 10 (Dispatch of Written Request for Return) |
Upon receiving a request from a requesting State for the return of property subject to execution, etc., the Minister of Foreign Affairs shall dispatch a written request for return to the Minister of Justice. <Amended by Act No. 11690, Mar. 23, 2013>
| Article 11 (Decision, etc. on Return of Property Subject to Execution, etc.) |
| (1) | Upon receiving a request from a requesting State for the return of property subject to execution, etc., the Minister of Justice may decide to return the property in whole or in part: Provided, That if the requesting State withdraws the request for return, if the value of the property subject to execution, etc. is insignificant, or if it is determined that returning the property subject to execution, etc. is inconsistent with the protection of an important interest of the Republic of Korea, such as national sovereignty, national security, peace and order, or social morals and customs, the foregoing shall not apply. |
| (2) | When the Minister of Justice makes a decision to return, in whole or in part, property subject to execution, etc., he/she shall order the chief public prosecutor of the district public prosecutor's office deemed competent to execute the return (hereinafter referred to as the "chief public prosecutor") to take measures necessary for the international cooperation provided for under Article 7 and to hold the property subject to execution, etc. in his/her custody for the purpose of returning the property. |
| (3) | The Minister of Justice, if deemed necessary even before a decision under paragraph (2) is made, may order the chief public prosecutor to take measures necessary for the international cooperation provided for under Article 8 or to hold property subject to execution, etc. in his/her custody temporarily for the purpose of returning the property, prior to making a decision to return, in whole or in part, the property subject to execution, etc. in any of the following cases: |
| 1. | Where it is determined to be fairly probable that a request for the return of the property subject to execution, etc. will be met; |
| 2. | Where it is expected that a requesting State will make a request for the return of the property. |
| Article 12 (Consultation on Return) |
The Minister of Justice shall consult with the Minister of Foreign Affairs where it is impossible under this Act to return property subject to execution, etc., where it is deemed appropriate not to return such property, or where he/she intends to postpone the return. <Amended by Act No. 11690, Mar. 23, 2013>
| Article 13 (Measures by Chief Public Prosecutor) |
| (1) | The chief public prosecutor who has been ordered pursuant to Article 11 (2) shall order a public prosecutor under his/her supervision to take measures necessary for the return of property subject to execution, etc. |
| (2) | Upon termination of the custody of property subject to execution, etc. for the purpose of returning, the chief public prosecutor who has been ordered pursuant to Article 11 (2) shall deliver the property subject to execution, etc. to the Minister of Justice without delay. |
| Article 14 (Transfer of Property Subject to Execution, etc.) |
| (1) | Upon receiving property subject to execution, etc. delivered in accordance with Article 13, the Minister of Justice shall transfer it to the authority of the Minister of Foreign Affairs. <Amended by Act No. 11690, Mar. 23, 2013> |
| (2) | When the Minister of Justice transfers property subject to execution, etc. pursuant to paragraph (1), he/she may set forth conditions with which the requesting State is expected to comply in regard to the use and return of the property subject to execution, etc. and may request the Minister of Foreign Affairs to call on the requesting State to guarantee compliance with the said conditions. <Amended by Act No. 11690, Mar. 23, 2013> |
| (3) | Upon receiving the request under paragraph (2) from the Minister of Justice, the Minister of Foreign Affairs shall take appropriate measures and notify the Minister of Justice of the results thereof. <Amended by Act No. 11690, Mar. 23, 2013> |
| Article 15 (Request for Recovery of Overseas Property Acquired through Corrupt Practices) |
| (1) | The Minister of Justice may make a request for international cooperation to a foreign state for the execution of a final and conclusive judgment of confiscation or collection of an equivalent value, or the preservation of property for confiscation or collection of an equivalent value. In such cases, the Minister of Justice may also make a request for the recovery of property subject to execution, etc. |
| (2) | When the Minister of Justice makes a request for the recovery of property subject to execution, etc. pursuant to paragraph (1), he/she shall dispatch a written request for recovery to the Minister of Foreign Affairs: Provided, That if circumstances require an emergency action or exceptional circumstances exist, the written request for recovery may directly be dispatched to the relevant foreign state, subject to the prior consent of the Minister of Foreign Affairs. <Amended by Act No. 11690, Mar. 23, 2013> |
| Article 16 (Dispatch of Written Request for Recovery) |
Upon receiving a written request for recovery from the Minister of Justice under Article 15, the Minister of Foreign Affairs shall dispatch the request to the relevant country: Provided, That if it is deemed inappropriate to request such recovery in light of diplomatic relations, the Minister of Foreign Affairs shall consult with the Minister of Justice on the matter. <Amended by Act No. 11690, Mar. 23, 2013>
| Article 17 (Recovery of Overseas Property Subject to Execution, etc.) |
| (1) | The recovery of property subject to execution, etc. from a foreign state shall be carried out by the Minister of Foreign Affairs. <Amended by Act No. 11690, Mar. 23, 2013> |
| (2) | The Minister of Foreign Affairs shall transfer the property recovered for execution, etc. to the authority of the Minister of Justice. <Amended by Act No. 11690, Mar. 23, 2013> |
| Article 18 (Disposition of Overseas Property Subject to Execution, etc.) |
| (1) | If the property delivered for execution, etc. is property other than money, the Minister of Justice may assign a public prosecutor to liquidate it or to assess its value. |
| (2) | Notwithstanding paragraph (1), property subject to execution may be destroyed, if there is no one willing to purchase it or if it is obvious that there will be no one willing to purchase it even if a sale were to be attempted because the value of the property recovered for execution, etc. is significantly low or the property has no economic utility. |
| (3) | If necessary to make a request for cooperation to a foreign state for the sale of property subject to execution, a public prosecutor may dispatch a written request for sale to the Minister of Justice, and the Minister of Justice shall, if deemed appropriate to make such request for cooperation, dispatch it to the Minister of Foreign Affairs. <Amended by Act No. 11690, Mar. 23, 2013> |
CHAPTER V SUPPLEMENTARY PROVISIONS
| Article 19 (Protection of Informants of Corruption Offenses) |
| Article 20 (Application Mutatis Mutandis of Criminal Procedure Act) |
| (1) | As to the execution and disposition of confiscation and collection of an equivalent value under this Act, the Criminal Procedure Act shall apply mutatis mutandis, except as specially provided for in this Act, unless the application mutatis mutandis contradicts the nature of the aforesaid Act. |
| (2) | The disposition of property subject to execution, etc. under Article 18 shall be carried out in compliance with the procedure prescribed in the regulations on confiscated articles and collection under Article 11 of the Prosecutors' Office Act. |
| Article 21 (Processing through Prosecutor General) |
The issuance of an order and the dispatch of a document by the Minister of Justice to a chief public prosecutor and the submission of a report and the dispatch of a document by a chief public prosecutor or a public prosecutor to the Minister of Justice shall be made through the Prosecutor General.
ADDENDUM
This Act shall enter into force on the date when the United Nations Convention against Corruption becomes effective for the Republic of Korea.
ADDENDA <Act No. 11690, Mar. 23, 2013>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Articles 2 through 7 Omitted.
ADDENDUM <Act No. 14410, Dec. 20, 2016>
This Act shall enter into force on the date of its promulgation.
ADDENDA <Act No. 15022, Oct. 31, 2017>
Article 1 (Enforcement Date)
This Act shall enter into force one year after the date of its promulgation.
Articles 2 through 15 Omitted.