SOUTH KOREA Law and Practice Contributed by: Byung Chang Lee, DR & AJU LLC
Additionally, fraudulently obtained assets can be seized by criminal investigative authorities and confiscated, depending upon the court’s deci - sion. Acquisition in the crime of acquiring stolen property means acquiring the right to dispose of the stolen property, in effect by taking posses - sion of the stolen property. The Korean Supreme Court held that “if the account holder of securities account transfers the securities account while being aware of the crime committed by the person who submitted the stock price manipulation order, it may be considered an act of adding and abetting that facilitates the execution of the stock price manip - ulation” (Supreme Court 2007do877 Decision). Bank Account Transfer and Withdrawal Cases The Korean Supreme Court held that “as the fraudulent act of the main criminal is terminated when the defendant receives money from the victim without transferring it to the principal offender, even if the accused later withdraws the money from the savings account, it is only the result of requesting the bank to return the depos - it as the holder of account, and therefore the accused act of withdrawal cannot be punished as a separate crime of acquiring stolen property” (Supreme Court 2010do6256 Decision). It can be concluded that, in order to be a separate crime differentiated from the main crime, there should be another violation in terms of acquiring stolen property. Degree of the Recognition of Stolen Goods Recognition of stolen goods does not require definitive recognition, but it is sufficient to have a conscious negligence to the extent of suspect - ing that it may be a stolen object. In a general transaction, if there are any suspicions as to whether the item is stolen – for example, if it is an expensive luxury item without a certificate or
if it is excessively cheap compared to the mar - ket price – then it may be punished as acquiring stolen property. In terms of civil law, the acts of assistance or facilitation of another’s fraudulent acts can con - stitute a tort claim, and the person who assisted or facilitated another’s fraudulent acts can be jointly and severally liable to compensate in damages. The Korean Supreme Court held that “if the hold- er of the securities account transfers the account while recognizing the crime of the person who submitted the order for market manipulation, it may constitute an act of aiding and abetting the act of carrying out market manipulation” (Supreme Court 2007do877 Decision). 1.4 Limitation Periods Limitation Periods and Preparation of a Civil Claim The limitation periods of a tort claim in Korea are three years from the date of recognition of the illegal acts and damage amounts, or ten years from the date of the occurrence of the illegal acts. From a criminal perspective, the limita - tion period depends on the maximum possible sentence period for each specific violation. The criminal limitation period for fraud is ten years, and, if the perpetrator fled abroad for the pur - pose of avoiding punishment, the statute of limi - tations regarding prosecution is suspended dur - ing the avoidance period, beginning again the moment they return to Korea. Typically, the victim of fraud files a criminal complaint first, and waits for the result of the investigation before preparing a civil complaint against the perpetrators. However, sometimes investigating criminal matters can take a long time, especially in high-profile cases; therefore,
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