※ Continuing from the column ‘Punitive collection under the Narcotic Drugs Control Act’ dated June 20, 2023
▲ ‘Impure(?)’ questions
Article 67 of the Narcotic Drugs Control Act stipulates that, in principle, not only the drugs themselves provided for drug crimes, but also the facilities, equipment, funds, or means of transportation provided for the crime and the proceeds thereof shall be confiscated, and if confiscation is not possible, the value thereof shall be collected. (=necessary confiscation and collection). In the previous article, we confirmed the interpretation theory that the collection under the Narcotic Drugs Control Act is not simply a disposition that deprives the actor (beneficiary) of the benefits resulting from drug crimes, but a disposition with a ‘punitive’ nature, and examples of its practical application.
It is good to be aware that ‘if you commit a drug crime, you will be severely punished’, but on the other hand, impure(?) curiosity arises. For example, ‘Is there a special standard for calculating fines for drug-related crimes?’ ‘If the transaction was made using other assets rather than money (for example, virtual assets such as Bitcoin BTC), is this also subject to confiscation and collection? Questions such as ‘Is there a way to avoid confiscation or collection altogether?’
▲ Method of calculating fines in drug transactions mediated by virtual assets (practical example)
Recently, the frequency of ‘non-face-to-face’ drug transactions in which ‘virtual valuable assets’ such as Bitcoin are exchanged instead of cash has exploded. In drug transactions mediated by virtual assets, ① it is more difficult to track transaction details compared to paying with real currency, and ② because the exchange prices of virtual assets change every minute, it is necessary to identify the actual drugs and criminal proceeds from individual drug transactions. It also has the characteristic of being difficult to do. Since the price of the virtual assets themselves exchanged in exchange for selling drugs fluctuates from time to time, it is not easy to determine how much drugs were actually bought and sold without supporting evidence (e.g., the contents of messages exchanged between the seller and the buyer, etc.) .
So, how are confiscations and collections for sellers and buyers carried out in the above type of drug trade? In relation to confiscation and collection under the Narcotic Drugs Control Act, the Supreme Court ruled that the value to be collected when confiscation is not possible should be considered to mean an amount equivalent to the gain that the criminal would have lost if he had kept the item and been sentenced to confiscation, so the value is calculated. must be based on the price at the time of judgment (see Supreme Court decision 91do352, May 28, 1991), and whether it is subject to confiscation or additional collection or recognition of the amount of additional collection does not require strict proof (Supreme Court 1993 . 6. 22. Refer to judgment 91do3346)]. (= ① If confiscation is not possible, the amount to be collected is based on the price at the time of sentencing. ② Whether or not it is subject to collection or the method of calculating the amount to be collected does not need to be supported by ‘strict proof.’)
Here, ‘strict proof’ refers to the degree of proof necessary to convict a person of a crime and means ‘proof beyond reasonable doubt (Criminal Procedure Act No. 307, Paragraph 2).’ In drug crimes, the method of determining whether specific property is subject to confiscation (collection) or calculating the amount of additional collection does not require the same level of 'strict proof' as acknowledging the fact of the crime, and does not require a factual trial (first trial, second trial). ‘Free proof’ based on the court’s reasonable judgment is sufficient.
In practice, if only one of the following two indicators is specifically specified: ① the actual quantity of drugs traded (e.g. weight) or ② the price exchanged in the name of the transaction price (value of virtual assets), the basis for calculating the additional amount from the investigative agency's point of view is It is understood that it is secured. The Supreme Prosecutors' Office independently produces and discloses statistical data called 'Monthly Trends in Narcotics' based on the results of investigations into actual drug crime cases. Although it cannot be disclosed in detail in the paper due to circumstances, it is data that is not disclosed in the above 'Monthly Trends', so the investigative agency has its own information. There is a 'drug trafficking price' calculated by identifying the drug trafficking price. The court also adopts this as a general basis for calculating additional fines.
Unless 'strict proof beyond reasonable doubt' is not required when calculating the surcharge, it is also acceptable to 'mix' more than one surcharge calculation method if it is a value calculation method that has a certain level of rationality and specific validity. It appears that For example, in the case of a seller who sold drugs to multiple buyers through an anonymous messenger and received Bitcoin in return, the trial court ruled that among several transactions, ① the transaction in which the quantity of the drugs sold was specified and ② the sale of drugs. Transactions in which the quantity of Bitcoin received in return was specified were differentiated, and the criteria for calculating the additional amount were different.
In the case of the latter (②), there is an additional debate as to whether the base price of virtual assets is calculated based on 'the exact moment when an individual transaction occurred' or 'is it calculated collectively according to the virtual asset market price at the time of the judgment?' There may be (since the calculated amount may vary depending on changes in the market price of virtual assets).
▲ Is there a ‘way to avoid confiscation and collection’?
In accordance with the Act on the Regulation and Punishment of Concealment of Crime Proceeds, etc. (abbreviated as: Act on the Concealment of Crime Proceeds), which was revised and implemented on January 4, 2022, crimes that meet certain standards (legal imprisonment of 3 years or more) are subject to this law. It was included as a target crime, and various types of violations stipulated in the Narcotics Control Act also became subject to the Control of Concealment of Crime Proceeds Act. The position of our legal system is that virtual assets such as cryptocurrency contain a certain property value and are subject to confiscation (collection) based on characteristics such as being traded on an exchange.
In addition, in accordance with the basis provisions such as the Special Act on the Prevention of Illegal Trafficking in Drugs (abbreviated as the Drug Trafficking Prevention Act) and the Supreme Court Rules on the Preservation of Confiscation for Drug Crimes, etc., dispositions of 'confiscation and preservation' (to use a rough analogy, civil affairs A person who has property subject to confiscation or collection, such as provisional seizure or provisional disposition system in a lawsuit, may be subject to a disposition that prohibits the disposal of the property, and if necessary, such preservation procedures may be carried out before actual indictment. Even so, it can be achieved.
◆ Reference rulings: Supreme Court decision 2006Do9314 pronounced on March 15, 2007, Supreme Court decision 91Do352 pronounced on May 28, 1991, Supreme Court decision 91Do3346 pronounced on June 22, 1993, etc.
▲ ‘Impure(?)’ questions
Article 67 of the Narcotic Drugs Control Act stipulates that, in principle, not only the drugs themselves provided for drug crimes, but also the facilities, equipment, funds, or means of transportation provided for the crime and the proceeds thereof shall be confiscated, and if confiscation is not possible, the value thereof shall be collected. (=necessary confiscation and collection). In the previous article, we confirmed the interpretation theory that the collection under the Narcotic Drugs Control Act is not simply a disposition that deprives the actor (beneficiary) of the benefits resulting from drug crimes, but a disposition with a ‘punitive’ nature, and examples of its practical application.
It is good to be aware that ‘if you commit a drug crime, you will be severely punished’, but on the other hand, impure(?) curiosity arises. For example, ‘Is there a special standard for calculating fines for drug-related crimes?’ ‘If the transaction was made using other assets rather than money (for example, virtual assets such as Bitcoin BTC), is this also subject to confiscation and collection? Questions such as ‘Is there a way to avoid confiscation or collection altogether?’
▲ Method of calculating fines in drug transactions mediated by virtual assets (practical example)
Recently, the frequency of ‘non-face-to-face’ drug transactions in which ‘virtual valuable assets’ such as Bitcoin are exchanged instead of cash has exploded. In drug transactions mediated by virtual assets, ① it is more difficult to track transaction details compared to paying with real currency, and ② because the exchange prices of virtual assets change every minute, it is necessary to identify the actual drugs and criminal proceeds from individual drug transactions. It also has the characteristic of being difficult to do. Since the price of the virtual assets themselves exchanged in exchange for selling drugs fluctuates from time to time, it is not easy to determine how much drugs were actually bought and sold without supporting evidence (e.g., the contents of messages exchanged between the seller and the buyer, etc.) .
So, how are confiscations and collections for sellers and buyers carried out in the above type of drug trade? In relation to confiscation and collection under the Narcotic Drugs Control Act, the Supreme Court ruled that the value to be collected when confiscation is not possible should be considered to mean an amount equivalent to the gain that the criminal would have lost if he had kept the item and been sentenced to confiscation, so the value is calculated. must be based on the price at the time of judgment (see Supreme Court decision 91do352, May 28, 1991), and whether it is subject to confiscation or additional collection or recognition of the amount of additional collection does not require strict proof (Supreme Court 1993 . 6. 22. Refer to judgment 91do3346)]. (= ① If confiscation is not possible, the amount to be collected is based on the price at the time of sentencing. ② Whether or not it is subject to collection or the method of calculating the amount to be collected does not need to be supported by ‘strict proof.’)
Here, ‘strict proof’ refers to the degree of proof necessary to convict a person of a crime and means ‘proof beyond reasonable doubt (Criminal Procedure Act No. 307, Paragraph 2).’ In drug crimes, the method of determining whether specific property is subject to confiscation (collection) or calculating the amount of additional collection does not require the same level of 'strict proof' as acknowledging the fact of the crime, and does not require a factual trial (first trial, second trial). ‘Free proof’ based on the court’s reasonable judgment is sufficient.
In practice, if only one of the following two indicators is specifically specified: ① the actual quantity of drugs traded (e.g. weight) or ② the price exchanged in the name of the transaction price (value of virtual assets), the basis for calculating the additional amount from the investigative agency's point of view is It is understood that it is secured. The Supreme Prosecutors' Office independently produces and discloses statistical data called 'Monthly Trends in Narcotics' based on the results of investigations into actual drug crime cases. Although it cannot be disclosed in detail in the paper due to circumstances, it is data that is not disclosed in the above 'Monthly Trends', so the investigative agency has its own information. There is a 'drug trafficking price' calculated by identifying the drug trafficking price. The court also adopts this as a general basis for calculating additional fines.
Unless 'strict proof beyond reasonable doubt' is not required when calculating the surcharge, it is also acceptable to 'mix' more than one surcharge calculation method if it is a value calculation method that has a certain level of rationality and specific validity. It appears that For example, in the case of a seller who sold drugs to multiple buyers through an anonymous messenger and received Bitcoin in return, the trial court ruled that among several transactions, ① the transaction in which the quantity of the drugs sold was specified and ② the sale of drugs. Transactions in which the quantity of Bitcoin received in return was specified were differentiated, and the criteria for calculating the additional amount were different.
In the case of the latter (②), there is an additional debate as to whether the base price of virtual assets is calculated based on 'the exact moment when an individual transaction occurred' or 'is it calculated collectively according to the virtual asset market price at the time of the judgment?' There may be (since the calculated amount may vary depending on changes in the market price of virtual assets).
▲ Is there a ‘way to avoid confiscation and collection’?
In accordance with the Act on the Regulation and Punishment of Concealment of Crime Proceeds, etc. (abbreviated as: Act on the Concealment of Crime Proceeds), which was revised and implemented on January 4, 2022, crimes that meet certain standards (legal imprisonment of 3 years or more) are subject to this law. It was included as a target crime, and various types of violations stipulated in the Narcotics Control Act also became subject to the Control of Concealment of Crime Proceeds Act. The position of our legal system is that virtual assets such as cryptocurrency contain a certain property value and are subject to confiscation (collection) based on characteristics such as being traded on an exchange.
In addition, in accordance with the basis provisions such as the Special Act on the Prevention of Illegal Trafficking in Drugs (abbreviated as the Drug Trafficking Prevention Act) and the Supreme Court Rules on the Preservation of Confiscation for Drug Crimes, etc., dispositions of 'confiscation and preservation' (to use a rough analogy, civil affairs A person who has property subject to confiscation or collection, such as provisional seizure or provisional disposition system in a lawsuit, may be subject to a disposition that prohibits the disposal of the property, and if necessary, such preservation procedures may be carried out before actual indictment. Even so, it can be achieved.
◆ Reference rulings: Supreme Court decision 2006Do9314 pronounced on March 15, 2007, Supreme Court decision 91Do352 pronounced on May 28, 1991, Supreme Court decision 91Do3346 pronounced on June 22, 1993, etc.
