洗錢罪之沒收與沒收競合

Confiscation of Money Laundering and Confiscation Concurrence

2016年我國立法者大幅修正洗錢防制法，將洗錢客體作為獨立的沒收類型。洗錢的客體，多半是源自前置犯罪的犯罪所得，新法修正之後遂衍生同一客體屬於前置犯罪不法利得外，同時依據洗錢防制法之規定是屬於義務沒收的客體，因而產生沒收的競合現象。
為探求沒收競合如何妥適處理，應討論洗錢客體沒收之規範目的與要件。總結而言，洗錢客體是犯罪物，而犯罪物沒收與利得沒收規範目的各自不同，且其奠基於不同不法原因事實，兩者不能相互取代，因此前置犯罪不法利得與本案洗錢客體仍應分別宣告沒收，然法院個案中得適用刑法第38條之2第2項之過苛條款予以調節，或為保護前置財產犯罪之被害人而例外封鎖犯罪物沒收。

In 2016, Taiwan’s legislature made substantive amendments to the Money Laundering Control Act (MLCA), which treated the object of money laundering as an independent type of confiscation. Most of the objects of money laundering are derived from predicate offences, therefore, after the amendment of the MLCA, the phenomenon of confiscation cooperation occurs as a result of the illegal predicate offences. At the same time, it became the compulsory confiscation objects by new MLCA.
To explore the appropriate interpretation and application of confiscation in cases of competing confiscation, it is crucial to discuss the purposes and requirements of confiscation of concerning the objects of money laundering. In summary, the objects of money laundering is the criminal object, and the purposes and requirements for the confiscation of criminal objects differ from those for the confiscation of illegal proceeds. The declarations of confiscation are based on different illegal grounds, and thus, they cannot be mutually substituted. Therefore, it is necessary to separately declare the confiscation of illegal proceeds from predicate crimes and the confiscation of money laundering objects in the present case. However, the court should apply the mitigating provision in Article 38-2(2) of the Criminal Code to adjust potential excessive confiscation, or make exceptions to block the confiscation of criminal proceeds in order to protect the victims of predicate property crimes.