2020年刑事程序法裁判回顧：沒收新制之實務發展觀察

Developments in the Law in 2020: Confiscation Procedure Law

本文研究我國沒收程序新法之實務發展，主要以2020年之最高法院裁判為研究範圍，挑選幾則具理論與實務重要性之沒收程序議題，兼論其他年度裁判。挑選議題包含：1.單獨宣告沒收之程序參與問題，特別是刑事本案通緝中（逃亡海外）被告有無在單獨沒收程序中參與之權利。2.擴大利得沒收兩個議題：2.1即我國法存在之「隱藏版」的擴大利得沒收；2.2擴大利得沒收之證明門檻問題。3.沒收與第三審上訴限制之關係，此爭議於刑訴法修正第376條之後，尤具重要性。自施行日起算至2020年底為止，沒收新制已經上路4年半，相關裁判如雨後春筍，然而相較於沒收實體法之穩健發展，沒收程序法雖問題層出不窮，但文獻研究能量仍然不足，有待理論與實務共同努力，本文指出前述若干實務爭議，期能拋磚引玉。

This article discusses issues related to confiscation procedure law with a selection of judgments with both theoretical and practical importance from the Supreme Court in 2020, so as to observe the practical trend of the new confiscation procedure law after its implementation since the year of 2016. These issues to be selected and discussed in this article include: 1. third person participation of Non-conviction-based Asset Confiscation, especially the Fugitive defendant in overseas. 2. Two practical controversies of the extended confiscation: 2.1 the “hidden”extended confiscation in Anti-Corruption Act; 2.2 the standards of proof in the extended confiscation. 3. the relation between confiscation and the limitation of appealing to the Supreme Court. It has been four and a half years since the new provisions of criminal confiscation in both the Criminal Code and in the Criminal Procedure Law came into effect to the end of 2020, in comparison with confiscation substantive law, where there have been a lot of discussions and research in literature and the judgements made by the Supreme Court are also gradually growing and the quality of judgments are improving, confiscation procedure law has been long ignored in literature and research field by contrast, this article aims to point out some of the practical issues as seen above and hopes to motivate more discussions and research in the field of confiscation procedure law.