본 연구는 실험을 통하여 몰수･추징의 사기범죄 억제 가능성을 탐색하고, 사기범죄를 저지르는 경우 기대효용이론에서 가정하는 완전한 합리성과 전망이론에서 가정하 는 제한된 합리성 가운데 어떠한 합리성을 가지고 있는지 확인하고자 하였다. 실험집단은 2(몰수 고지/미고지)×2(경제적으로 동일한 상황 중 이득/손실 프레임)의 조건으로 무선 할당하여 집단별 거짓말을 하는 비율에 차이가 있는지 확인하였다. 실험 결과 네 가지 집단 중 몰수를 고지하고 상황이 이득 프레임인 경우에만 다른 집단에 비하여 유의미하게 거짓응답을 덜 하는 것으로 평가되었다. 또한, 경제적 합리성 점수가 증가할수록 거짓말을 하는 비율이 감소하며, 가족의 경제력이 높다고 응답 할수록 거짓말을 하는 비율이 증가하는 것으로 나타났다. 연구결과에 따라 사기범죄를 억제하기 위해서는 몰수･추징제도를 강화하여 사기범죄를 저지르는 것이 손해라는 인식을 구축하는 것과 동시에 정직하게 살수록 손해를 본다는 사회 분위기를 바꾸어야 할 것이다.

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.

The purpose of the confiscational or penalty of criminal gains is to deprive the crime of its illegal profits and prevent it from being retained. On the other hand, under criminal law, joint crime, teacher crime, and accessories are intended to be punished for criminal acts and their degree of participation, so the two do not necessarily have to be consistent in logic. In other words, if a person is merely an accessory and receives sufficient income from a crime through crime, he or she should pay an additional charge of criminal profits obtained in the form of wages, etc. but if a person is joint principal offender and receive not sufficient income from a crime through crime, he or she do not need to pay an additional charge of criminal profits obtained in the form of wages, etc. In the result, who will pay the penalty from depends on the attainment of the purpose of the confiscational or penalty of criminal gains.

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.