‘특정재산범죄수익 등의 환수 및 피해구제에 관한 법률안’의 몇 가지 헌법적 쟁점

Constitutional Issues concerning the Bill for Recovering Proceeds from Specific Property Crimes

Recently, some officers and staffs of L.H. (Korea Land & Housing Corporation) had invested in the land that was predesignated as the site of “New Town “developments and earned significant profits from these investment activities. Prompted by these events, the Bill for the Recovery of Proceeds from Specific Property Crimes (hereafter “the Bill”) was proposed to the National Assembly of the Republic of Korea. Article 5(b) of the Bill (hereafter “Article A”) raises a constitutional issue on the presumption of innocence principle. Article 13(d) (hereafter “Article B”) raises the issue on the warrant principle. Additional Clause 2 (hereafter “Article C”) raises the issue on the prohibition of retrospective legislation. A summary of the review on the above-mentioned constitutional issues are as follows. First, since Article A stipulates that recovery requests should be made following specific property crimes, the Bill is subject to the application of the presumption of innocence principle. The recovery of the proceeds from the specific property crimes falls under “the disadvantage”, stated in the presumption of innocence principle. However, the recovery of proceeds does not infringe this principle because it follows the proportion principle in the presumption of innocence principle. Second, since the legal nature of Article B is similar to the “administrative inspection”, the warrant principle cannot be applied to Article B. But if the purpose of Article B is also for the disposition of the concerned person, requiring a warrant may be deemed as overprotection of human rights, but ultimately cannot be assessed as a “wrong provision.” Third, since Article C stipulates that the Bill can also be applied to the recovering of the proceeds from specific property crimes that were committed before the enforcement of the law, the law is a “retrospective legislation.” Therefore, Article C is in violation of Article 13(b) of Korean Constitution that prohibits the deprivation of property rights through retrospective legislation.