行政罰法利得剝奪及沒入規定與刑法沒收規定競合問題之研究

Concurrence between the Regulations of Deprivation of Illegal Benefits and Forfeiture in the Administrative Penalty Act and the Confiscation Regulations in the Criminal Code

我國行政罰法係自2006年2月初開始施行，相較於當時刑法沒收相關規定之簡陋，行政罰法於立法時即以當時德國秩序違反罰法為仿效對象，而在第18條以下就不法利得之剝奪及沒入部分有較為完整之規範。或因當時刑法關於沒收之規定較為簡陋，尤其是欠缺不法利得沒收之規範，故而在相關個案中較少出現應如何適用行政罰法與刑法相關規定之爭議問題。然而，自從新刑法於2015年大幅增修沒收規定後，相關個案中因新刑法沒收規定與行政罰法利得剝奪及沒入規定之競合所生規範解釋與適用爭議問題，已屬常見而不可避免。本文由最高行政法院107年度判字第732號行政判決，及相關判決之原因事實所生之行政罰法沒入規定與刑法利得沒收規定之競合問題出發，就現行行政罰法利得剝奪及沒入規定與刑法沒收規定在個案中可能出現之各種競合情形，以及所衍生相關法規之解釋與適用問題予以類型化，並藉由分析行政罰法及新刑法相關規定之規範內容與性質，以及沒入與沒收之標的是否為同一特定財物或僅為財產上利益等觀點，嘗試於現行行政罰法之規範脈絡下，探求可能之解決途徑，並對最高行政法院107年度判字第732號行政判決及相關判決進行評析。

Since the enforcement of Taiwan's Administrative Penalty Act in 2006, compared to the absent relevant regulations of confiscation in the Criminal Code at that time, the Administrative Penalty Act takes example from the German Act on Regulatory Offenses at the beginning of legislating which makes the regulations of illegal benefit deprivation and forfeiture below Article 18 in the Administrative Act more complete. As a result of the the absent regulations of confiscation in the Criminal Code at that time, especially on the lacuna in the regulation of illegal benefit confiscation, disputes regarding interpretation and applicability of regulations on the Administrative Penalty Act and the Criminal Code happen less frequently in relevant cases. However, after the amendment of Criminal Code in 2015 regarding the regulation of confiscation, the concurrence in different relevant cases between the regulations of confiscation in the Criminal Code and the regulations of illegal benefit deprivation and forfeiture in the Administrative Penalty Act has frequently and inevitably led to disputes regarding interpretation and applicability. Using the transaction and occurrence for the Judgment No. 732 of Supreme Administrative Court of 2018 and relevant judgments, this study starts from the aforementioned problem (the concurrence between the regulation of forfeiture in Administrative Penalty Act and the regulation of confiscation in Criminal Code) with typing various possible concurrence situations in cases between the regulations of illegal benefit deprivation and forfeiture in the current Administrative Penalty Act and the regulations of confiscation in the Criminal Code as well as the interpretation and applicability of derivative regulations. Furthermore, by examining the content and nature of Administrative Penalty Act and Criminal Code as well as the perspective of whether or not the subject of confiscation and forfeiture is the same specific property or merely just the property benefit, this study sought to find possible solutions under the context of the current Administrative Penalty Act. The Judgment No. 732 of Supreme Administrative Court of 2018 and relevant judgments were also analyzed and evaluated.