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특별법상 추징의 법적 성격 KCI 등재
Legal Character of the Additional Collection in Criminal Special Act
As crimes generating huge sum of benefit such as organized crimes, narcotic crimes, and pornography related crimes have been increasing, criminal special act intends to make a redemption for the benefits from criminal acts by the provisions of forfeit or additional collection. Generally, forfeit based on criminal law is characterized as security measure in that it prevents from keeping unlawful benefits by depriving criminals of profit from the wrongful acts. Therefore, when suspended sentence is added to the primary sentence, suspended sentence can be imposed to the additional collection. However, it is not available if it is not added to the primary sentence. Independent appeal on the additional collection is also impossible if there is no appeal for the final judgement. On the contrary, the additional collection from Act on the Control of Narcotics, etc, Customs Act, and Act on aggravated punishment, etc. of specific economic crimes is characterized as a punishment based on the fact of crime. However, in the targeted case, it is questionable that special laws consider the additional collection as punishment. Punitive additional collection is unfavorable to the offender because it can be imposed even though there is no actual benefit from the wrongful acts. Moreover, it is not reasonable to impose not only jointed additional collection based on civil law but also punishment. It is contradictory to the responsibility principle that criminal law calls for and the way of weighing of an offense. Additional collection to a person who simply transport or keep some goods, not to the person who obtain the goods, is not appropriate to the responsibility principle of criminal law. In this respect, the scope of the additional collection needs to be narrowed and it seems to be more reasonable to use the concept of deprivation of benefits from criminal acts.
사실관계
사건경과 및 판결이유
판결요지
[대상판결 2] 대법원2008. 11. 20. 선고2008도5596 전원합의체 판결
사실관계
사건경과 및 판결이유
판결요지
〔연구〕
I. 문제제기
II. 추징에 관한 일반적 고찰
III. 형사특별법상 추징의 법적 성격
IV. 추징의 성격에 따른 부수적인 문제
V. 결 론
[참고문헌]
[Abstract]
