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A Study on the Criminal Countermeasures against the Cultural Heritage Crime

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2024, 12(1), pp.349-385
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : February 14, 2024
  • Accepted : February 25, 2024
  • Published : February 29, 2024

Song, Seung Eun 1

1배재대학교

Accredited

ABSTRACT

The Cultural Heritage Crimes have different characteristics from ordinary crimes, so special measures and preventive measures are required. In particular, since it is virtually impossible to return cultural heritage exported abroad, it is necessary to prevent illegal trade and smuggling abroad. Applying the basic principles of criminal law theory, focusing on the Cultural Heritage Protection Act and Enforcement Decree of the Act on Protection and Inspection of Buried Cultural Heritage(hereinafter, the Buried Cultural Heritage Act), which currently have penalties for cultural property crimes, the problems and improvement measures of the relevant regulations are as follows. First, it is contrary to the principle of equal treatment to equally define the statutory sentence for damaging, stealing, and concealing cultural properties, so it is necessary to distinguish them and determine the appropriate scope of punishment. Second, the Cultural Heritage Protection Act punishes the acquisition, transfer, transfer, or transportation, and arrangement of stolen cultural assets, but it is reasonable to punish the act of storage compared to the crime of stolen goods under the criminal law. Third, even if the statute of limitations for theft of cultural properties is completed, the concealment of cultural properties can be punished and confiscated. However, when the statute of limitations is completed, the stolen property disappears, and punishment is impossible. Considering the cultural property crime as a continuing offender and proceeding with the statute of limitations from the end of the concealment act can have the effect of extending the statute of limitations. Fourth, there are regulations that exclude the acquisition of good faith for certain cultural properties, but the requirements for proof are not clear, so if data such as the source and acquisition of hidden cultural properties are submitted and confirmed, the exception of confiscation shall be recognized by presuming the acquisition of good faith. Fifth, for certain crimes that can be included in the criminal law, such as theft of cultural properties, damage, arson, and days, it should be incorporated into the criminal law. In addition, it is necessary to newly establish counterfeit cultural property crimes and stipulate them as aggravated constituent requirements for counterfeit crimes under the criminal law. Sixth, cultural property crimes are international crimes and are subject to cosmopolitanism, so new globalism regulations are required. Finally, a separate criminal sanctions regulation should be newly established for illegal cultural property transactions taking place online.

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