| 英文摘要 |
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. |
