犯罪所得沒收之第三人程序參與

Abstract

揮別過去晦暗的空窗，我國犯罪所得沒收自2016年7月1日刑法與刑事訴訟法新增修條文生效後，終於進入一個新的時代，除了從實體法上緊追「剝奪犯罪所得」之目標，程序上更有扣押、假扣押、發還被害人、客體程序等設計配套，除此之外，尚有本文通篇所要討論的「參與」制度，佔了此次刑事訴訟法之增修相當大部分。「參與」以一言蔽之，就是期望犯罪所得沒收能夠構築在程序保障之上，合憲地達到剝奪犯罪所得、遏止經濟犯罪之目標。 本文以德國之「參與」出發，在忠實呈現制度原生國之規範後，以此為基探討我國「參與」之樣貌、以及運作上究竟應何往何從，希冀我國犯罪所得沒收之參與程序，不至在欠缺繼受脈絡理解之下，迷失在純粹的說文解字之中，更不願「剝奪犯罪所得」之理想反而在程序裡摔跤。在繁複的說明中，以下四點尤值得我國多所關注，一是能以「參與」方式進入程序之第三人範圍，二是公司負責人作為被告兼充公司參與代表之正當性，三是法院為參與人指定代理人之可能，四為簡易程序、協商程序、與事後程序在「不延宕本案程序」上之斷裂。

From 1st July 2016 onwards, regulations concerning confiscation of illegal proceeds in Criminal Code and The Code of Criminal Procedure in Taiwan were applied, which heralded a brand new epoch in Taiwan as confiscation as an issue had fallen into a state of neglect over the bygone decades. These new regulations, in the perspective of substantive law, focus on the deprivation of illegal proceeds, and also in the aspect of procedural law, establish several complementary measures including seizure, provisional attachment, return-to-the-victim provision, independent confiscation proceedings, etc. Apart from the provisions above, ‘the participation of the third persons’, which this study is all about, constitutes one of the major portions of the above-mentioned amendment to law. The ‘participation’, in brief, functions as the procedural due process, helping the confiscation serve its purpose: the constitutional deprivation of the proceeds derived from criminal activities and the nullification of the motivation behind committing a crime. This study begins with the introduction of the ‘participation’ in the confiscation proceedings in Germany, which is the model for the related regulations in Taiwan; on this basis, the ‘participation’ in Taiwan is discussed next, including its formulated structure and precisely how it is supposed to be applied. With this comparative macro-approach, it is hoped that the interpretation of the relating regulations in Taiwan would not go awry with only literal translation due to the lack of comprehensive understanding from the original model, and therefore would not impede the confiscation. In the study, there are 4 issues that are especially worthy of notice in Taiwan: (1) Who can be the one participating, (2) the justification for the representatives to still represent their company as the participant while they are already defendants in the relating cases, (3) the possibility that the participants get a court-appointed representative, and (4) the deviation from the spirit of causing no undue delay in the proceedings, which especially can be a problem in the summary procedure, the bargaining process, and the subsequent proceedings, in which the previous confiscation order may be revoked.