"Confiscation of Land as Well as Building Violates the Principle of Proportionality"
Hong, who appeared in the 2021 SBS program "Unanswered Questions" episode titled "The Pimp Who Became a God-tier Landlord - The Secret of the Glass Room Chairman," was able to avoid confiscation of the land plot that was provided for prostitution.
Although the land was indeed used for prostitution, the ruling stated that confiscating only the building sufficiently prevents Hong from committing similar crimes, and confiscating the land with high economic value due to upcoming redevelopment violates the principle of proportionality.
According to the legal community on the 18th, the Supreme Court's First Division (Presiding Justice No Tae-ak) sentenced Hong, who was indicted for aiding and abetting prostitution under the Act on the Punishment of Acts of Arranging Sexual Traffic, to 1 year and 6 months in prison and upheld the lower court's ruling to confiscate only the building, not the land, that was provided for prostitution.
The court explained the reason for dismissing the prosecutor's appeal, stating, "There is no error in the lower court's judgment not to confiscate the land in this case, as claimed in the grounds for appeal, by violating the rules of logic and experience, exceeding the limits of free evaluation of evidence, or misunderstanding the legal principles regarding joint perpetrators of prostitution facilitation under the Sexual Violence Punishment Act and confiscation under the Act on the Regulation of Concealment of Crime Proceeds."
Hong and his wife were jointly tried on charges of operating prostitution establishments or providing buildings used as prostitution venues in the red-light district of Yeongdeungpo-gu, Seoul, from 2019 to 2020. Additionally, Hong was charged in December 2021 with leasing his land or buildings to Mr. A for monthly rents of 1 to 1.5 million KRW, knowing they were used for prostitution.
The first trial sentenced Mr. A to 1 year and 6 months in prison and imposed a fine of 33.31 million KRW, ordering confiscation of both the building and land where prostitution occurred.
Article 48, Paragraph 1, Subparagraph 1 of the Criminal Act, the basic provision on confiscation, stipulates that "objects provided or intended to be provided for criminal acts" are subject to confiscation.
The Supreme Court has taken the position that "confiscation under Article 48, Paragraph 1, Subparagraph 1 of the Criminal Act is discretionary; even if an object meets the requirements for confiscation, whether to confiscate it is generally left to the court's discretion. However, this discretion is limited by the principle of proportionality applicable to all punishments, and this legal principle similarly applies to confiscation under Article 8, Paragraph 1 of the Act on the Regulation of Concealment of Crime Proceeds."
Regarding the criteria for judging the principle of proportionality, the Supreme Court has stated, "To determine whether confiscation violates the principle of proportionality, various factors must be considered, including the extent and scope of the object's use in the crime, its importance in the crime, the owner's role and responsibility in the crime, the degree of infringement on legal interests caused by the crime, the motive for the crime, profits obtained from the crime, the separability of the part of the object related to the crime, the object's actual value and its correlation and balance with the crime, whether the object is indispensable to the offender, and the risk and degree of the offender reoffending using the object if it is not confiscated."
In other words, objects provided for crimes are not necessarily subject to confiscation; judges may exercise discretion by considering factors such as the contribution to the crime, separability, and the risk of recidivism if not confiscated, according to the Supreme Court's stance.
The first trial court regarded Hong's land and building as objects knowingly provided for prostitution and ordered their confiscation under the Act on the Regulation of Concealment of Crime Proceeds.
Article 2, Paragraph 2, Subparagraph (b) of the Act defines funds or property related to "providing funds, land, or buildings knowing they are used for prostitution facilitation" as a type of "crime proceeds." Article 8, Paragraph 1, Subparagraph 1 of the same Act lists such property as subject to confiscation.
The court pointed out, "The land and building in this case are real estate located in the prostitution district of Yeongdeungpo-gu. The building has a glass room with a full glass window on the first floor and several rooms on the second floor, making the entire structure suitable for prostitution business operations."
It continued, "The defendant appears to have purchased the land and building around June 2007 and operated prostitution establishments directly or provided them for such operations for a long period. Considering these circumstances comprehensively, confiscating the land and building is necessary to fundamentally remove the material basis for operating prostitution establishments and prevent recidivism, and such confiscation does not violate the principle of proportionality."
However, the second trial court's judgment differed. The appellate court accepted Hong's appeal that confiscating the land along with the building violates the principle of proportionality. The principle of proportionality requires a reasonable balance between the purpose and means of enforcement.
Like the first trial court, the appellate court found it necessary to confiscate Hong's building used for prostitution.
The court cited the following reasons: the glass room with full glass windows on the first floor is used as a space for soliciting customers, and the second floor has several rooms, making the entire building structurally suitable for prostitution business; considering the building's location, structure, and age, it is highly unlikely to be used for purposes other than prostitution; the area where the building is located is undergoing redevelopment, which is expected to take a long time until completion, and it is necessary to prevent the building from being used as a prostitution establishment until then.
On the other hand, the court judged that confiscating the land in addition to the building was excessive.
The court reasoned that the land is a separate real estate from the building, which was knowingly provided for prostitution; the land's actual economic value is expected to be significantly higher than the building's once redevelopment progresses; and since the building used for prostitution will be confiscated, there is no apparent risk that the defendant will commit similar crimes on the land again. Therefore, confiscating the land violates the principle of proportionality, and the appellate court's ruling ordering confiscation of the land contains a legal error affecting the judgment.
It added, "Hong's appeal against the confiscation part of the lower court's ruling is justified, so it is overturned, and only the building is confiscated from Hong pursuant to Article 8, Paragraph 1, Subparagraph 1 of the Act on the Regulation of Concealment of Crime Proceeds."
The prosecutor appealed again, but the Supreme Court found no problem with the appellate court's judgment.
In 2021, SBS reported in the "Unanswered Questions" episode titled "The Pimp Who Became a God-tier Landlord - The Secret of the Glass Room Chairman" that Hong, known as the "Glass Room Chairman," was active as the chairman of the redevelopment promotion preparation committee in the Yeongdeungpo 4-ga area.
© The Asia Business Daily(www.asiae.co.kr). All rights reserved.
