論行政罰法上沒入之性質

The nature of confiscation in the Administrative Penalty Act in Taiwan

我國行政罰法第1條將沒入與罰鍰及其他種類之行政罰併列，將其定性為處罰之一種，可見其重要性。在相關之規定中，並只專就具制裁性質之沒入予以規範，至於不具制裁性質者，則有意委由個別法規中自行規定。惟行政罰法中既將沒入規定為處罰之一種，且不採從罰之態度，則沒入是否僅具制裁性質而無其他性質之可能，有必要予以釐清，尤其在立法政策上，是否考量應有較為完整之規範設計。此外，新修正刑法針對沒收部分，做了大幅度之修正，此與沒入之性質有密切之關係。其修正之內容，應可供如何處理行政罰法沒入規定時之參考。又影響我國行政罰法立法甚深之德國違反秩序罰法，其在沒入部分亦有相當完整之規定，當然有借鏡之價值。其次，將回到我國之法制，探討行政罰法上沒入之相關規定，主要是第1條及第21條至第23條規定，以究明其性質以及相關規定之內容。再者，國內已有學者針對刑法修正後，行政罰法是否應配合而有所修正，提出深入之見解，對此將予以檢討並提供個人淺見，以供參酌。

In Article 1 of the Administrative Penalty Act in Taiwan, confiscation is in juxtaposition with other types of administrative penalties, and is defined as one type of penalties, which shows its important status in the Administrative Penalty Act. In the relevant provisions, only the confiscation of sanction-nature was regulated. The confiscation of non-sanction-nature, in opposition, was entrusted individual laws and regulations in its own discretion. However, confiscation was defined as a type of penalties in the Administrative Penalty Act, and was treated as one of the major penalties. It is necessary to clarify whether the confiscation is of sanction-nature only, as well as whether there shall be a complete regulation design, especially in the aspect of legislative policy. In addition, the newly revised Criminal Law made a drastic amendment to the forfeiture, which is closely related to the nature of the confiscation. The content of the amendment should provide reference for how to deal with the re gulation of confiscation in the Administrative Penalty Act. Furthermore, the Germany “Violating Order Act”, which affected deeply the legislation of the Administrative Penalty Act in Taiwan, has complete rules of confiscation and could be a reference for this issue. Moreover, I will return to the legal system of Taiwan to explore the relevant provisions of confiscation in the Administrative Penalty Act, mainly Article 1 and Article 21 to Article 23, in order to clarify its nature and the content of relevant provisions. Finally, some domestic scholars have proposed some deep-rooted opinions on whether the Administrative Penalty Act should be amended after the amendment of Criminal Law, which will be reviewed in this article, and some personal opinions would be provided for reference.