犯罪物沒收

Abstract

2016年上路之沒收新制，號稱「刑法的百年變革」，但自立法理由與法條文義觀察，立法者似乎將制度革新的焦點過度集中於犯罪利得沒收。包含第三人沒收、替代價額追徵、過苛條款等新制度，雖同樣適用於犯罪物與犯罪利得沒收，卻均係以犯罪利得沒收為制度適用的假想對象，犯罪物沒收在新制中被漠視，其本身複雜而多元的性質在新制中更加模糊不清。我國之沒收新制號稱師法德國，然於詳加比較兩國關於「犯罪物沒收」的相關規定後，可明確發現新制中的犯罪物沒收大多仍援用舊法定義，於定性上亦忽視犯罪物與犯罪利得之差異，立法理由僅針對後者有明確說明，對前者則未置一詞，且德國法中諸如關聯客體之沒收依據、因應三人沒收之補償制度等有關犯罪物沒收的詳盡配套規定，新法均未予以建制。此等東缺西漏的修法品質，再加上部分於舊制時即存在的問題，為我國的犯罪物沒收留下許多疑問，這些問題並於實務上引發許多解釋爭議。本文擬以德國法為比較基準，詳盡分析新制下的犯罪物沒收，指出現行法與實務運作上碰到的問題，並提出本文的解決方案，期望能充實我國的犯罪物沒收制度。

The new provisions concerning criminal confiscation, known as “century-old change in criminal law field”, was launched in 2016. But it seems that according to the legislative explanation and the content of law itself, the confiscation of criminal proceeds has been overly-focused. Although other provisions such as confiscation from other persons, confiscation of alternative value, principle of proportionality are applied theoretically both to confiscation of criminal objects and criminal proceeds, the actual applications are mostly presumed under confiscation of criminal proceeds, while confiscation of criminal objects being neglected, the complexity and diversity itself become even more unclear under the new regulations. The new legislation was modeled based on German Law, however after comparing the regulations of Taiwan and Germany, it is found that the definition of confiscation of criminal objects in the old law is kept being used in the new regulation, and the difference between criminal objects and criminal proceeds are not being taken into account, only the confiscation of criminal proceeds is being mentioned in the legislative explanation. Moreover, many other regulations concerning confiscation of criminal objects, including the legal basis of confiscation of objects of the crimes, the compensation system coping with the confiscation from other persons, are all absent in the new law. Many controversial issues of confiscation of criminal objects in practice are arised under the background of poor legislation and problems in the old system. This essay analyzes the new regulation of confiscation of criminal objects in comparison to German Law, while points out solutions to some practical issues and hopes to enrich the system of confiscation of crime-related objects in our country.