Forfeiture is a property punishment that deprives a crime-related property for the purpose of preventing the repetition of a crime or preventing it from profiting from the crime. In addition, Confiscation is a Judicial disposition to pay for the whole or part of the forfeitured object if it can not be forfeitured. Article 48 of the Korean Penal Code stipulates forfeiture and confiscation, and stipulates arbitrary. However, Article 134 of the Criminal Code (money to be paid to a bribe or bribe received by a criminal or a third person who knows the criminal in bribery), Article 206 of the Criminal Code (opium, opium, morphine), Article 357 (3) of the Penal Code (the property acquired by the criminal) and many special laws require forfeiture and confiscation as essential. In regard to such general forfeiture and confiscation, the Supreme Court refers to the forfeiture and confiscation in some special act as ‘disciplinary forfeiture and confiscation’ for the purpose of punishing without aiming at the deprivation of profits in light of the purpose of the legislation and the purpose of the legislation. and in the case of ‘disciplinary forfeiture and confiscation’, it acknowledges the collective responsibility of confiscation. In this article, I will review critically on what the Supreme Court has called ‘disciplinary confiscation’ for the forfeiture and confiscation of foreign exchange transaction act, and examine the problems of collective responsibility of confiscation.

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.