Recently, the court dismissed the transfer lawsuit for the ownership of the residence in Yeonhui-dong, citing the death of Chun Doo-hwan. Although additional evidence of slush funds amounting to 90 billion won has surfaced regarding the Roh Tae-woo family, they have essentially received a get-out-of-jail-free card on the grounds that they paid their fines in full. There is a need for the introduction of the 'independent forfeiture system' to allow for the recovery of criminal proceeds from deceased criminals.
On the 11th, Kim Byung-ki, floor leader of the Democratic Party of Korea, stated at a forum titled 'Discussion on the recovery of criminal proceeds through state violence crime' held at the National Assembly Member's Office Building, 'A history that has not been settled repeats itself.'
At the forum organized by Democratic Party of Korea member Park Kyeon-taek, an in-depth discussion took place regarding the 'independent forfeiture system,' which addresses the legal limitations in recovering criminal proceeds when a businessman with accumulated slush funds dies or absconds abroad, as in the 'Nth Room case.'
The current Act on the Regulation of Proceeds of Crime allows for 'preservation of forfeiture' and 'preservation of collection' for revenues generated from criminal acts after the arrest of a suspect. This is to prevent the suspect from disposing of the property that is subject to forfeiture or their general property indiscriminately before a definite judgment is made.
However, if the criminal dies or flees abroad, making it impossible to proceed with the trial, the sentence is not finalized, and forfeiture or collection cannot be executed. There is also the possibility that the criminal may siphon off the criminal proceeds that were not preserved during the trial.
The independent forfeiture system is designed to prevent this. It treats properties presumed to be criminal proceeds as targets for forfeiture regardless of the trial. Even in situations where a criminal's death or escape abroad makes it difficult to conduct a trial, criminal proceeds can still be forfeited. An independent forfeiture system is currently being implemented in the United States, Germany, and other countries.
The government also views the introduction of the independent forfeiture system positively. Earlier, Minister Jeong Seong-ho stated during a personnel hearing last month, 'We must introduce the independent forfeiture system to ensure that criminal proceeds do not disappear in situations where the suspect has died or cannot be identified.'
At the National Assembly, Representative Park Kyeon-taek, who hosted the forum, has led the legislative discussion by proposing a bill to amend the Act on the Concealment of Proceeds of Crime to reflect the independent forfeiture system on the 21st of last month.
At the forum, experts noted that the independent forfeiture system would have a positive effect in terms of addressing past injustices and enhancing social justice.
Professor Park Jae-pyeong from Chungbuk National University's School of Law, who presented at the forum, stated, 'State violence crimes are difficult to expose immediately due to systematic intervention by public power, coercion of silence from victims, and the concealment and fabrication of evidence.' He added, 'Many incidents are only revisited years later through investigations by truth and reconciliation commissions, and the aid to victims or recovery of criminal proceeds is achieved only to a very limited extent.'
Professor Park continued, 'The introduction of the independent forfeiture system also aligns with international standards. International norms such as the United Nations Convention Against Corruption recommend allowing the recovery of criminal proceeds even without a guilty verdict.' He added, 'This could help recover illegal assets and restore a minimum level of justice for victims. It is a systemic measure that aligns with the public's sense of justice.'
However, there are counterarguments. First, the potential for infringement on basic rights exists when the state forfeits property without a guilty verdict. Additionally, including the properties of the criminal's family members as targets for forfeiture could disrupt the balance of private interest protection and excessively restrict property rights. Applying the independent forfeiture system to cases where the suspect has died, thus eliminating prosecutorial authority, could raise constitutional debates as a 'quasi retroactive legislation.'
Kim Hye-mi, a researcher at the National Assembly's Legislative Research Service, stated, 'It is unclear whether the nature of the independent forfeiture system should be defined as criminal sanctions or viewed as administrative actions. This is directly related to the issue of retroactive legislation.' She added, 'Specific procedural controls for this system need to be established to ensure the rights of relevant parties and the processes for objections are adequately provided.'
In this regard, Professor Park remarked, 'Concerns about constitutional debates or procedural control can be adequately addressed through legislative refinement.' He emphasized, 'The independent forfeiture system should not merely be viewed as a new criminal sanction tool but as part of a reform aimed at achieving justice that responds to changed social and historical realities.'
Prosecutor Jeon Seong-hwan from the Ministry of Justice stated concerning the retroactive legislation debate, 'The Ministry of Justice believes that if the independent forfeiture system is introduced, the related provisions would be seen as 'supplementary measures' and regarding retroactive legislation, we consider it an issue of 'true retroactive legislation.' He pointed out that the Constitutional Court has previously ruled that true retroactive legislation may be permitted in cases where there are significant public interests at stake.
The scope of crimes subject to the independent forfeiture system is also a topic of controversy.
Prosecutor Jeon Seong-hwan mentioned, 'The independent forfeiture system is not just an advanced system; it is a universally necessary system that has already been adopted by Southeast Asian countries where we conduct anti-corruption capacity-building projects through ODA. The independent forfeiture system should be introduced not only for crimes of state violence but also for civil crime infringements.'
In response, researcher Kim Hye-mi expressed, 'If the target crimes are expanded, the implementation review process could become lengthy.' She suggested, 'Initially, it would be efficient to limit the system to state violence crimes and other crimes against humanity that have been proposed this time, and later expand the range of applicable crimes through social discussions.'
If the independent forfeiture system is introduced, it is expected that the slush funds of Roh Tae-woo, which newly emerged during the divorce proceedings between Chey Tae-won, chairman of SK Group, and Noh Soo-young, director of the Art Center Nabi, will be the first target.
Heo Yeon-sik, a commissioner of the Chun Doo-hwan and Roh Tae-woo slush fund recovery committee at the 518 Memorial Foundation, stated, 'In the divorce proceedings of Noh Soo-young, the 300 billion won that was transferred to the Sun Kyung Group, which has recently become known as evidence submitted to the court by Roh Tae-woo's wife (Kim Ok-sook), must be thoroughly investigated for the possibility that it is slush funds.' He added, 'There is a need for a special investigation agency to conduct a thorough investigation of the slush fund creation by two former presidents, Chun Doo-hwan and Roh Tae-woo.'
Kang Seong-phil, deputy spokesperson for the Democratic Party of Korea, said, 'Some argue that it is practically impossible to recover the illegal slush funds formed too long ago, but if there is a national will and legislative determination, recovery is certainly possible.' He added, 'Legislation must be initiated immediately to prevent even a single won of illegal slush funds from being hidden or passed down.'