論洗錢犯罪利得之擴大沒收

The Extended Confiscation of the Money Laundering Control Act

洗錢犯罪擴大利得沒收，係依據《洗錢防制法》第18條第2項規定：「以集團性或常習性方式犯第十四條或第十五條之罪，有事實足以證明行為人所得支配之前項規定以外之財物或財產上利益，係取自其他違法行為所得者，沒收之。」將沒收範圍擴大至源自本案犯罪行為以外之其他違法行為之財產標的。擴大利得沒收之性質是一種「準不當得利之衡平措施」，旨在衡平不合法之財產的挪移，其既不是「刑罰」也不是「類似刑罰之制裁」，因此其適用並不以確認行為人具有罪責為前提從而並無違反罪責原則或無罪推定原則，以及不當侵害人民財產權之疑慮，惟上開規定係參酌德國2017年刑法修正前之第261條第7項第2句規定而來，將洗錢犯罪擴大利得沒收之範圍限定在「以集團性或常習性方式違犯特定洗錢犯罪規定」之行為人所得支配之源自其他犯罪所得的財產標的，將會發生無法澈底剝奪犯罪利得的法律漏洞。德國為填補是項漏洞，遂於2017年依歐盟沒收指令修正其刑法第261條規定，刪除「以集團性或常習性之方式」違犯洗錢犯罪的文字，進一步擴大利得沒收制度之適用範圍。基此，本文主張為填補《洗錢防制法》第18條第2項規定可能造成之法律漏洞，應再修法刪除該規定「以集團性或常習性之方式」的文字，俾貫徹「任何人均不得擁有不法利得」之原則，守護財產分配之公平正義的法律秩序。

According to Article 18 (2) of the Money Laundering Control Act, when an offence under Article 14 or 15 is committed by an organized group or on a frequent basis, if there is sufficient evidence confirming that the property or the benefits of the property—not prescribed in the preceding paragraph—obtained or at the disposal of the offender, is in fact incomes of other unlawful activity, the abovementioned assets shall be confiscated. Accordingly, crime gains confiscation, on one hand, extends its scope to the assets that do not necessarily come from the convicted offense but from other unlawful acts. The aforementioned provision imposes very less requirements for the proof of the concrete circumstances of the above unlawful acts, as well as those for the culpability and the criminal traceability. On the other hand, it includes the assets that the offenders or participants are unable to effectively obtain pursuant to the Civil Law due to a breach of the Criminal Law. The extended crime gains confiscation is either a penalty nor a penal sanction, but a compensatory meansure in the nature of ‘quasiunjustified enrichment’. Its application is not based on the finding of guilt pursuant to Article 73d of the Criminal Law. This provision causes no infringement to the guilt principle or the presumptoin of innocence, as it is either a penalty nor a penal sanction which does not require the finding of guilt. It is considered to be a special form of crime gains consfication which is used to restitute the unlawful transfers of assets. The extended crime gains consfication is therefore a deprivation of the crime gains obtained from commitment of the offenses. In addition, the extended crime gains confiscation does not constitute a violation against self-denial of the accused protected under the Constitution Law. The accused is not legally obligated to make statements about his/her criminal acts to avert an order of crime gains confiscation. Furthermore, there is no breach of the right to property provided under Article 15 of the Constitution Law. Although a crime gains confiscation order imposes impacts on the right to property by interfering the ownership of particular property, it identifies the boundary within which the property is legally protected. The law of extended crime gains confiscation aims to safeguard the fundamental legal interests by combating organized crimes, in particular the illegal narcotics trade. It is constitutionally-justified and also complies with the principle of proportionality. It serves an effective measure to not only deprive the offenders of their profits gained from the drug trade but also take away the funds that may be used for further commitment of crimes. At last, this paper particularly focuses on the interpretation of Article 38 of the Money Laundering Control Act to provide a reference for judicial practical works.