Open Decision Ledger · Criminal & investigative procedure
Confiscation of a foreign vessel and the third-party owner's claim for return
Supreme Court, Sept. 25, 2025, 2025Da212302 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 선박등인도·부당이득금
Official text on the National Law Information Center
Question
When a foreign vessel and its fittings have been confiscated under Article 8(1) of the Territorial Sea and Contiguous Zone Act on a conviction of its captains for fishing in Korean territorial waters, may the State, which holds the vessel under seizure, refuse the owner's claim for delivery by relying on that confiscation judgment, even though the owner was not tried in the criminal case?
Holding
Article 8(1) of the Territorial Sea and Contiguous Zone Act is a special provision on confiscation under the General Part of the Criminal Act. In the relationship with the crew or other persons on board who are tried, the vessel and its fittings may be confiscated whoever owns them and whether or not the owner is an accomplice. The effect of that confiscation judgment runs only against the defendants convicted of the underlying offence and leaves the ownership of a third party who was not tried in that case untouched, so the State may not refuse the owner's claim for delivery unless it is shown that continued seizure is needed in connection with the offence, or that there is some other right to possess.
Points at issue, verbatim
영해 및 접속수역법 제8조 제1항의 몰수 규정이 형법 총칙상 몰수에 대한 특별규정인지 여부(적극) 및 외국선박의 승무원이나 그 밖의 승선자가 어로 행위로 인한 영해 및 접속수역법 위반에 제공한 선박 등에 대하여는 소유자나 공범 여부 등과 관계없이 이를 몰수할 수 있는지 여부(적극)
Unofficial English translation
Whether the confiscation provision of Article 8 (1) of the Territorial Sea and Contiguous Zone Act constitutes a special provision on confiscation under the General Part of the Criminal Act (affirmative), and whether vessels and other things provided by the crew of a foreign vessel or any other person aboard for a violation of the Territorial Sea and Contiguous Zone Act caused by fishing operations may be confiscated regardless of ownership or accomplice status (affirmative)
Disposition
Partly reversed and remanded Stated in the decision
원심판결의 본소청구 중 원심 별지 기재 선박과 그에 부속된 물품 및 의장품 일체 인도청구 부분을 파기하고, 이 부분 사건을 인천지방법원에 환송한다. 나머지 상고를 기각한다.
Unofficial English translation
The portion of the main claim in the judgment of the court below concerning the claim for delivery of the vessel set forth in the appendix to the judgment of the court below and of all articles and equipment attached thereto is reversed, and this part of the case is remanded to the Incheon District Court. The remainder of the final appeal is dismissed.
Form of the test
Elements stated Stated in the decision
이 몰수 규정은 형법 총칙상 몰수에 대한 특별규정으로서, 외국선박의 승무원이나 그 밖의 승선자가 어로 행위로 인한 영해법 위반에 제공한 선박 등에 대하여는 그것이 누구의 소유인지, 그 소유자가 해당 범행의 공범인지 등과 관계없이 재판을 받는 외국선박의 승무원이나 그 밖의 승선자에 대한 관계에서 이를 몰수할 수 있다.
Unofficial English translation
This confiscation provision is a special provision on confiscation under the General Part of the Criminal Act, and vessels and other things provided by the crew of a foreign vessel or any other person aboard for a violation of the Territorial Sea and Contiguous Zone Act caused by fishing operations may be confiscated, in relation to the crew of the foreign vessel or any other person aboard who are being tried, regardless of who owns them or whether the owner is an accomplice in the relevant offense.
Factors
- 영해 및 접속수역법 제8조 제1항의 몰수 규정이 형법 총칙상 몰수에 대한 특별규정인지 여부(적극)
- 피고인 이외의 제3자의 소유에 속하는 물건의 경우, 몰수를 선고한 판결의 효력이 재판을 받지 아니한 제3자의 소유권에 미치는지 여부(소극)
- 소유자 아닌 승무원이나 승선자에 대한 몰수판결을 들어 외국선박 소유자의 인도청구를 배척할 수 있는지 여부(원칙적 소극)
Unofficial English translation
• Whether the confiscation provision of Article 8 (1) of the Territorial Sea and Contiguous Zone Act constitutes a special provision on confiscation under the General Part of the Criminal Act (affirmative)
• Whether, in the case of an article owned by a third party other than the defendant, the effect of a judgment pronouncing confiscation extends to the ownership of the third party who has not been tried (negative)
• Whether the confiscation judgment rendered against the crew or other persons aboard who are not the owner may be invoked to defeat the foreign vessel owner's claim for delivery (negative in principle)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1999. 5. 11. 선고 99다12161 판결(공1999상, 1143)
Unofficial English translation
Supreme Court Decision 99Da12161 decided May 11, 1999 (Gong 1999 Sang, 1143)
Decisions referred to
대법원 1999. 5. 11. 선고 99다12161 판결(공1999상, 1143)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If the owner were later convicted of the same violation as an accomplice in a separate criminal case, would the effect of a confiscation judgment then reach its ownership?
The remand judgment of the Incheon District Court on the delivery claim will show what the parties proved on special circumstances and how the effect of the confiscation judgment was applied. A later Supreme Court decision on the reach of a confiscation judgment against an owner convicted as an accomplice, or an amendment to Article 8(1) of the Territorial Sea and Contiguous Zone Act, would require this entry to be read again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “If the owner were later convicted of the same violation as an accomplice in a separate criminal case, would the effect of a confiscation judgment then reach its ownership?” vs Independent “What specific circumstances would justify continued seizure or otherwise establish the State's right to retain the vessel against its owner?”
The primary asks about confiscation after the owner's separate conviction, while the independent asks what justifies continued seizure or another right to possession.
영해 및 접속수역법 제8조 제1항의 몰수 규정이 형법 총칙상 몰수에 대한 특별규정인지 여부(적극) 및 외국선박의 승무원이나 그 밖의 승선자가 어로 행위로 인한 영해 및 접속수역법 위반에 제공한 선박 등에 대하여는 소유자나 공범 여부 등과 관계없이 이를 몰수할 수 있는지 여부(적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Incheon District Court, in its judgment of 10 April 2025 (2024Na61868, 52530), held that the plaintiff, a company with its head office in the People's Republic of China and registered as owner of the two fishing vessels, was an accomplice to the captains' violations of the Territorial Sea and Contiguous Zone Act. On that premise it held that the effect of the final first-instance criminal judgment of 13 April 2023, which confiscated the vessels and their fittings, extended to the plaintiff as owner, and dismissed so much of the main claim as sought delivery of the vessels and their fittings, ornaments and equipment.
Supreme Court standard: The Supreme Court held that the confiscation provision of Article 8(1) is a special provision and that its effect reaches only the defendants convicted of the offence that caused the confiscation, not the ownership of the plaintiff, which was not tried in that case. It held that the court below had misapprehended the object and scope of confiscation under Article 8(1) and the effect of a confiscation judgment, and had failed to examine whether special circumstances justified continued seizure, so the error affected the result. It reversed the delivery portion of the main claim and remanded that part to the Incheon District Court, and dismissed the plaintiff's remaining appeal for want of stated grounds, all justices concurring.
Distinguishing conditions
- Where it is shown that continued seizure of the vessel is needed in connection with the offence that caused the confiscation, or that the State has some other right to possess it.
- Where the claimant for delivery was itself tried and convicted in the case in which the confiscation was ordered, so that it is not a third party untried in that case.
- A claim to ownership or possession that does not rest on the ownership of the vessel, since the Court decided only a delivery claim founded on ownership against the State holding it under seizure.
Record verification notes
Set the file against three points. First, look at the criminal case record to see whether the claimant was a defendant there, since the Court confined the effect of the judgment to the persons convicted. Second, gather what the State offers as a right to keep the vessel apart from the confiscation judgment, since without such circumstances the delivery claim stands. Third, confirm which provisions the confiscation was made under, here Article 5(2)(x) and Article 8(1) of the Territorial Sea and Contiguous Zone Act and Article 48 of the Criminal Act.
From the official text
Points at issue
영해 및 접속수역법 제8조 제1항의 몰수 규정이 형법 총칙상 몰수에 대한 특별규정인지 여부(적극) 및 외국선박의 승무원이나 그 밖의 승선자가 어로 행위로 인한 영해 및 접속수역법 위반에 제공한 선박 등에 대하여는 소유자나 공범 여부 등과 관계없이 이를 몰수할 수 있는지 여부(적극) / 피고인 이외의 제3자의 소유에 속하는 물건의 경우, 몰수를 선고한 판결의 효력이 재판을 받지 아니한 제3자의 소유권에 미치는지 여부(소극) / 영해 및 접속수역법 위반으로 몰수가 선고된 외국선박 등에 대하여 소유권에 기초하여 이를 압수하고 있는 대한민국을 상대로 인도를 청구하는 경우, 소유자 아닌 승무원이나 승선자에 대한 몰수판결을 들어 외국선박 소유자의 인도청구를 배척할 수 있는지 여부(원칙적 소극)
Unofficial English translation
Whether the confiscation provision of Article 8 (1) of the Territorial Sea and Contiguous Zone Act constitutes a special provision on confiscation under the General Part of the Criminal Act (affirmative), and whether vessels and other things provided by the crew of a foreign vessel or any other person aboard for a violation of the Territorial Sea and Contiguous Zone Act caused by fishing operations may be confiscated regardless of ownership or accomplice status (affirmative) / Whether, in the case of an article owned by a third party other than the defendant, the effect of a judgment pronouncing confiscation extends to the ownership of the third party who has not been tried (negative) / Whether, where a claim for delivery on the basis of ownership is brought against the State of Korea, which is seizing a foreign vessel and other things, after confiscation has been pronounced for a violation of the Territorial Sea and Contiguous Zone Act, the confiscation judgment rendered against the crew or other persons aboard who are not the owner may be invoked to defeat the foreign vessel owner's claim for delivery (negative in principle)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결의 본소청구 중 원심 별지 기재 선박과 그에 부속된 물품 및 의장품 일체 인도청구 부분을 파기하고, 이 부분 사건을 인천지방법원에 환송한다. 나머지 상고를 기각한다.
Unofficial English translation
The portion of the main claim in the judgment of the court below concerning the claim for delivery of the vessel set forth in the appendix to the judgment of the court below and of all articles and equipment attached thereto is reversed, and this part of the case is remanded to the Incheon District Court. The remainder of the final appeal is dismissed.
Provisions referred to
영해 및 접속수역법 제5조 제2항 제10호, 제8조 제1항, 형법 제48조
Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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