刑事犯罪所得沒收新制之解釋與適用──沒收新制四週年檢討

Interpretation and Application of the New Criminal Confiscation System: a Review of the New Confiscation Law on its 4rd Anniversary

刑事沒收新制為了窮盡犯罪所得沒收，而將沒收定性為獨立的法律效果， 連帶的也解除了沒收的可責性要件，並宣示犯罪所得未經合法發還被害人者， 一律宣告沒收。然而沒收新制對被害人權利保障之規定，卻相形簡陋，在犯罪 所得未經合法發還被害人的情況下，一律宣告沒收的結果，造成被害人反而變 成沒收新制下的最大犧牲者，而被告也可能演變成被雙重剝奪犯罪所得的另一 個被害人。 本文係從德國沒收舊制及新制的比較法觀點，探討我國沒收新制施行四週 年以來，新法所衍生有關被害人與第三人之權利保障問題，俾供實務及將來再 修法時參考。

The most recent confiscation regulations were stipulated to seize all proceeds gained from crimes. Therefore, the nature of such confiscation is considered as independent legal effect. This new law also removes the imputable requirements for confiscating and at the same time declares that all criminal proceeds that have not been legally returned back to victims must be seized. However, this newly stipulated confiscation law is relatively simple and incomplete in terms of protecting victims'rights. The declaration of confiscating all criminal proceeds before they are returned back to victims by law will have them bear the greatest losses upon the application of the new confiscation system. In addition, the new law can also turn a defendant to be another victim who may experience deprivation of criminal proceeds twice. This paper aims to examine the old and new confiscation systems in Germany from the perspective of comparative law so as to further explore the issues concerning the protection of the victims'and the third-party's rights arising from the new law after its being enforced for three years in Taiwan. The results obtained from the discussions will serve as a reference for future practices and amendments in this regard.