An amendment to the Criminal Code provisions governing confiscation was passed by Taiwan's Legislative Yuan on 17 December 2015 and will be effective from July 1, 2016.
- Under Taiwan's current Criminal Code, confiscation is considered an accessory punishment, whereas under the amended Criminal Code, confiscation becomes an independent punishment, is addressed in its own section. Moreover, usually criminal punishments are imposed pursuant to the laws prevailing when the criminal act at issue is committed. However, the amended provisions are retroactive, allowing a confiscation order to be issued pursuant to the law prevailing at the time of judgment.
- Expanded scope of the persons subject
to confiscation and the objects to be confiscated:
- Under Article 38 of the current Criminal Code, contraband shall be confiscated, regardless of whether it belongs to the offender, while a thing used in the commission of or preparation for the commission of an offence, or derived from or acquired through the commission of an offence may be confiscated only if it belongs to the offender.
- Under Paragraph 3 of Article 38 and
Paragraph 2 of Article 38-1 of the amended Criminal Code, offenders
shall also include natural persons, legal persons and non-corporate
associations involved in the offenses.
- Under Paragraph 3 of Article 38 of the amended Criminal Code, a thing that is provided or acquired by a natural person, legal person or non-corporate association other than an offender and is used in the commission of or preparation for the commission of an offence or derived from the commission of an offence may be confiscated.
- Under Paragraph 2 of the newly added
Article 38-1 of the Criminal Code, proceeds of crime acquired by a
natural person, legal person or non-corporate association other
than an offender in any of the following circumstances shall be
- The recipient knows that the illicit proceeds are obtained as a result of another person's illegal acts.
- The proceeds are obtained from another person's illegal acts without consideration or with a clearly disproportionate consideration
- The proceeds are obtained by a third party from the illegal acts committed by the offender for that third party.
- Courts today, as in Judicial Yuan Interpretation No. Yuan-2140, defines proceeds of crime as money acquired directly from commission of offenses, excluding proceeds of sale of things acquired from commission of offenses or things derived therefrom for other causes. However, under Paragraph 4, Article 38-1 of the amended Criminal Code, proceeds of crime shall include proceeds of illegal acts, things obtained from the conversion of such proceeds, or property interests obtained from the conversion of such proceeds and the interest accrued thereon.
- A Paragraph 3 is added to Article 40 of the Criminal Code, reading, "If the offender acquiring the things under Paragraph 2 or 3 of Article 38, or Paragraph 1 or 2 of Article 38-1 cannot be prosecuted or convicted for factual or legal reasons, the proceeds may be declared confiscated sans a principal punishment." Under the current Criminal Code, if the proceedings are stopped after a ruling not to prosecute the offender, not to entertain the case, or to exempt the offender from prosecution is pronounced because the offender has died, absconded, or been finally adjudicated, or the proceedings are suspended because the offender cannot appear in court on the grounds of mental incapacity or sickness, confiscation cannot be pronounced because no principal punishment can be pronounced. Under the amended Criminal Code, the disputed proceeds may be declared confiscated sans a principal punishment.
- In order to deprive the offender of any proceeds of crime, and prevent debtors from selling all their property, the newly added Article 38-3 of the Criminal Code stipulates the ownership of or other rights in the confiscated things. Before a final judgment is rendered, the confiscation has the effect of a prohibition of disposal; after a final judgment is rendered, such proceeds shall be transferred to the State. Nevertheless, out of consideration for security of transactions, third parties' rights in confiscated things shall not be affected.
- Enforcement of Confiscation
- A statute of limitations for
enforcing confiscation is added to Paragraphs 2 to 4 of Article
40-2 of the Criminal Code.
- Except for confiscation of prohibited things or where any law stipulates otherwise, no confiscation shall be enforced beyond the time limit under Article 80.
- No confiscation shall be enforced where the property to be confiscated is outside the territory of the Republic of China and the time limit in the preceding paragraph has expired for five years.
- If a confiscation order is not issued or enforced over 10 years beginning from the pronouncement of the final judgment, no confiscation shall be enforced.
- In order to deprive the offender of all the proceeds of crime, Paragraph 4, Article 38 and Paragraph 3, Article 38-1 of the Criminal Code are amended to stipulate that where a thing subject to confiscation cannot be confiscated or confiscation thereof cannot be properly enforced in whole or in part, the value thereof shall be collected from the offender. A Paragraph 2 is added to Article 38-2 to stipulate that if it is clearly difficult to decide the scope or the amount of the illicit proceeds to be confiscated or the money to be collected under the preceding article, such scope and amount may be decided by estimation.
- Where a suspension of an accused's sentence has been pronounced, the suspension of the sentence will not be recognized by the amended Criminal Code provisions governing confiscation as such provisions do not allow the accused's criminal proceeds to be confiscated under such circumstances. That is why Paragraph 5 of Article 74 of the amended Criminal Code stipulates that the suspension of sentence shall have no effect on a pronounced confiscation.
- Proceeds that shall not be
confiscated or collected or the confiscated or collected sum shall
- According to Paragraph 5 of Article 38-1 of the amended Criminal Code, illicit proceeds that have legitimately been returned to the victim shall not be declared for confiscation or collection.
- According to Paragraph 2 of Article 38-2 of the amended Criminal Code, if the confiscation or collection is likely to be patently severe or is not important according to the Criminal Code, or the value of the illicit proceeds is marginal, or the proceeds are essential for the livelihood of the person subject to the declaration, confiscation may not be ordered or the amount to be confiscated may be reduced.
- A statute of limitations for enforcing confiscation is added to Paragraphs 2 to 4 of Article 40-2 of the Criminal Code.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.