犯罪資產沒收之法制架構與實務觀察──以美國聯邦與加州沒收制度作為反思契機

Asset Forfeiture, Equitable Sharing, and Policing for Profit in California: A Cautionary Tale for Taiwan

立法院於二○一五年十二月三讀通過刑法總則沒收制度之修正，將其定性為保安處分措施，賦予具有獨立性的法律效果。此次修正一方面使得沒收不再依附於主刑，他方面亦擴大沒收之範圍，及於犯罪行為人以外之人。未來如何設計相應之程序機制、第三人權益保障，以及查扣資產之分配與使用，實必須審慎考量。再者，新修正沒收制度對於執法系統與執法行為所造成之影響，亦是後續實證研究之重點項目。本文旨在透過比較法之分析，以美國聯邦與加州犯罪資產沒收制度為中心，進行法制評析與實務資料之彙整研究，期能提供我國未來沒收法制設計之政策指引與借鏡。在論述順序上，本文首先介紹美國犯罪資產沒收之制度演進與其「三軌、兩階層」結構，並比較聯邦法與加州法之異同。其次說明聯邦司法部所制定之資產沒收政策，對於加州執法實務之影響。本文從四個面向，分別檢視美國資產沒收法制之缺失與成因。最後，本文希望在我國沒收法制全面德國化的脈絡底下，進一步反思美國犯罪資產沒收，對我國制度還能有多少具體影響。

Traditional conviction-based forfeiture has been proved a failure when the offenders escape or die, the property belongs to a non-innocent third party, or the crime committed has run out statutes of limitation. All states in the United States and the federal government allow law enforcement to seize and forfeit cash, property, and other materials that they believe are associated with illegal activity. Civil forfeiture provides the government with a relatively easy way to deprive criminals of the fruits of the crimes. However, the increase in the number and scope of forfeiture laws created a concern regarding the procedural safeguards to ensure that property owners had adequate rights to defend property subject to forfeiture. Many states and the federal government allow the proceeds from forfeiture to go to law enforcement agencies. Moreover, in 1984, the federal government established its most controversial forfeiture policy－the equitable sharing program－whereby state and local agencies could request that the Department of Justice “adopt” and then share a drug-related asset seizure. The explicit motivation for the DOJ-sharing provision was to provide law enforcement at all levels with an incentive to pursue drug crimes. The incentive for abuse is tremendous, because local law enforcement agencies may use the forfeited properties to fund their operations. Forfeiture becomes necessary as a budgetary supplement. The current asset forfeiture system can result in allegations of “policing for profit.” In order to prevent the abuses of civil asset forfeiture, California reformed its asset forfeiture law to improve due process and property rights, and limit law enforcement’s ability to profit from seizing citizen’s property. This paper focuses on whether law enforcement forfeiture activities are influenced by a profit consideration. I will examine whether California’s local law enforcement agencies’ decision to participate in the federal government’s equitable sharing program are influenced by the share of proceeds the agency could have received under California law. I seek to further explore the effect of asset forfeiture laws on the behavior of both local governments and law enforcement.Meanwhile, the traditional criminal justice system in Taiwan includes only criminal and administrative forfeiture, while non-conviction based forfeiture is not yet in place. The absence of non-conviction based forfeiture leaves a huge gap in fighting and cubing economic crimes. In December, 2015, the Taiwanese legislature passed an amendment in the Criminal Code, allowing asset seizures and forfeitures without conviction under certain circumstances. The amendment further expends the range of forfeitable assets that belong to third parties. It is crucial to develop procedural mechanisms that can strike a balance between the object of forfeiture and the according crime. By developing a proper asset forfeiture process, Taiwan’s legal system will stand firm with three pillars: the administrative, criminal and non-conviction based forfeiture. The legal framework that facilitates the forfeiture of criminal assets will then become all-inclusive, and the enforcement agencies will be able to take advantage of such a system in a flexible approach when fighting the increasing number of economic crimes. More importantly, the study of U.S. federal and California asset forfeiture systems can provide invaluable insight and policy guidelines for Taiwanese government. The problems faced by the current U.S. asset forfeiture system indicate the importance of developing a proper safeguard to prevent any potential profit motives from law enforcement agencies. Several suggestions will be provided as a conclusion of this paper.