從一個國土保育案件看沒收新制（保全扣押）的實踐

Interpreting Crime Gains Confiscation (Seizure for Recovery) through Investigating Environmental Crime

基於無人能因犯罪而受利益之原則及消除經濟上之犯罪誘因，我國於2015年12月30日修正公布刑法總則編沒收相關規定，除擴大沒收主體之範圍外，並擴大沒收犯罪所得之範疇，包括無形之積極及消極財產利益，且於全部或一部不能沒收或不宜執行沒收時，追徵其價額，並於2016年7月1日施行。刑事訴訟法亦相應作出修正，建構沒收新制運作之程序。檢察官偵辦案件如食品安全及環境保護等案件時，應同理行為人「利」字站中間的犯罪動機，宜循沒收新制之精神，致力將「徹底剝奪犯罪利益」的元素加入偵查作為中，例如清查被告及其家屬之金流、財產、勸諭被告自動繳交犯罪所得、尋找犯罪所得計算基準等，莫生犯罪者或因犯罪而獲利之人坐擁犯罪所得之弊。

To be in line with the principle that no man can benefit from crime commitments and to eliminate economic motivations for crime commitments, Taiwan amended and promulgated the provisions regarding confiscation in the Part of General Provisions of Criminal Code on December 30, 2015, where the scope of subject of confiscation was expanded and the that of the gain from crime was expanded too, including intangible gain of property, in both positive form and negative form, and to impose tax on the value of such property gain, in whole or in part, as cannot be confiscated or is inappropriate to confiscate. The amendment was enforced on July 1, 2016. Amendments were made to the Code of Criminal Procedure accordingly, instituting procedure for the operation of new systems of confiscation. Prosecutors who are investigating in food safety and environmental protection cases and the like should consider the acting persons’ motives that focused on ‘gains’, and it is advisable to follow the spirit of the new systems, to be dedicated to incorporate the element of ‘depriving thoroughly of the gains from crime’ in the investigation. For example, to check on the defendants and their families in respect of money flow, properties, to advise them to autonomously submit the gains from crime, and to find the basis for estimating the gains from crime, so that the disadvantage of criminals or those gain from crimes walking away with the gains will be prevented.