2019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 2019: Confiscation Procedure Law

本文觀察我國沒收程序新法施行後的實務走向，挑選幾則2019年做成，其中具理論與實務重要性沒收議題的最高法院刑事裁判。挑選議題包含：1、關於保全執行扣押：1.1兩種保全執行扣押（沒收扣押、追徵扣押）之區別及1.2其與證據扣押之競合問題。2、關於第三人參與程序的兩個實務爭議：2.1若第三人及檢察官皆未聲請參與，法院得否依職權命第三人參與；2.2主文漏未諭知第三人沒收與否的效果。3、以被告死亡的繼承型案例為中心，綜覽單獨宣告沒收的實務爭議。沒收新制自施行日起算至2019年底為止，已經上路3年半，相較於沒收實體法方面文獻蓬勃發展，最高法院裁判亦漸入佳境，沒收程序法近乎乏人問津，本文指出前述若干實務爭議並進行探討，期能拋磚引玉。

This article discusses several issues related to confiscation procedure law with a selection of judgments with both theoretical and practical importance from the Supreme Court in 2019, in order 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. Seizure for recovery: 1.1 The distinction of two kinds of seizure for recovery (seizure for confiscation or seizure for forced collection) and 1.2 the relation between seizure for recovery and seizure for evidence. 2. Two practical controversies of third person participation process: 2.1 whether the court can adjudicate ex officio a third person to participate in the confiscation process when neither the third person nor the prosecutor has applied to the court for the third person to participate; 2.2 the effect of a judgment when the main text missed out to inform whether the third person be seizured or not. 3. An overall view of practical controversies of non-conviction-based assest confiscation with the case of inherited type of confiscation when the defendant dies. It has been three 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 2019, 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 above practical issues as seen above and hopes to motivate more discussions and research in the field of confiscation procedure law.