論供犯罪所用物沒收之範圍

On the Scope of Confifiscation of the Object Used for Crime

刑法沒收新制已於2016年7月正式上路，沒收之定性已經去刑罰化，其修法重點在於宣告沒收不需以有罪判決為基礎。然依司法實務所見，倘如某物與犯罪行為毫無關聯或僅具偶然關聯（關聯客體），尚無從適用刑法沒收新制。由於沒收新制增訂過苛條款，因此，旨在排除沒收過度適用之關聯客體概念，是否仍有必要，即有重新檢討之必要。在參考美德二國與包含聯合國公約在內之國際規範等相關沒收法制發展後，本文認為，在修法前，或有為調節過度沒收現象而有酌採關聯客體概念之必要；然在增訂過苛條款後，為免在功能上疊床架屋，應無必要再以關聯客體避免過度沒收。

The new forfeiture section in the ROC Criminal Code has been in effect since July, 2016. Since forfeiture is no more criminal punishment, it would be no-conviction based only. According to the Supreme Court decisions, such as the case of 106 Tai Sun 1374 holding that the related object should not be considered the property, equipment or other instrumentalities used in or destined for use in offences, the purely related objective would not be forfeited even though it was actually used to commit an offense. However, whether this decision conf licts with the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances is not clear. As the new forfeiture law, Paragraph 2 of Article 38-2 of the ROC Criminal Code providing that“If the confiscation or compulsory collection specified in the preceding two paragraphs is too harsh, lacks significance to the purport of the criminal code, or whereas the proceeds of crime is little, or is necessary for maintaining the living conditions of the offender, it may not be pronounced or may be reduced,”prohibits courts from imposing excessive forfeiture orders, it is necessary to review the idea of the related objective as well as its accompanying judicial decisions. After referring to the corresponding practices in the United States, as well as that in Germany, this study asserts that the idea of the related object should no more apply because Paragraph 2 of Article 38-2 of the ROC Criminal Code would be enough to prevent the government from seeking for undue and excessive forfeiture.