March 2018
Since the rule of strict proof does not apply to the confiscation of criminal proceeds as it is not criminal penalty, free proof alone will be sufficient (Taiwan)
2017.11.2
Jonathan Chao
The Supreme Court rendered the 106-Tai-Shang-3231 Criminal Decision of November 2, 2017 (hereinafter, the "Decision"), holding that since the rule of strict proof does not apply to the confiscation of criminal proceeds as it is not criminal penalty, free proof alone will be sufficient.
According to the facts underlying this Decision, the original trial court rendered a decision holding that since the Appellant had committed offenses of waste disposal without a waste disposal permit, the Appellant was sentenced to one year and five months in prison along with the instruction that the criminal proceeds should be confiscated and collected for committing the offense of waste disposal without obtaining a waste disposal permit in accordance with Article 41, Paragraph 1 of the Waste Disposal Act. Dissatisfied, the Appellant appealed. One of the appeal reasons was that the original trial court rendered a decision to reverse the first instance decision and change the original sentence with the additional instruction in its text that the criminal proceeds of NT$320,000 which had not been attached in this case shall be confiscated. This decision was unfavorable to the Appellant and obviously violated the principle of adverse alteration prohibition under Article 370 of the Code of Criminal Procedure. In addition, the original trial court had failed to explore the weight of relevant wastes which had not been classified and could have been reused for sale and elected to estimate and project the Appellant's criminal proceeds. This also violated the principle of presumed innocence.
According to this Decision, after the Appellant's act was engaged,the requirements for confiscation under the Criminal Code were amended with a dedicated chapter added, and Article 2, Paragraph 2 of the Criminal Code was also revisedto elaborate that for punishment made as a confiscation, the law in force at the time of judgment shall apply. Both the above amendments became effective on July 1, 2016. Since the nature of confiscating criminal proceeds is similar to the equity measures against unjust enrichment and such confiscation is not criminal penalty, the rule of strict proof certainly does not apply and free proof would be sufficient. Therefore, if the court's calculation of criminal proceeds is based on evidence and materials in the case file and if certain arguments and explanation which are relied on as the basis are provided in the reasons, the court cannot be accused of legal violation directly.
If was further held in this Decision that since the first instance court had failed to take into account the above new provisions concerning confiscation, the original trial court reversed the decision and changed the original sentence. Since this did not violate the proviso of Article 370, Paragraph 1 of the Code of Criminal Procedure, the principle of adverse alteration prohibition certainly did not apply. In addition, the original decision calculated the Appellant's criminal proceeds in manners most favorable to the Appellant based on the quantities of steel wire purchased and the profit generated for each kilogram as stated by the Appellant on each occasion in the past and instructed the confiscation and collection of such criminal proceeds. This was not unlawful and pertained to the exercise of facts finding and discretionary authority of a trial court. Therefore, the principle of presumed innocence was not violated, either. Therefore, this Decision dismissed the appeal for a lack of legal formalities.
Jonathan Chao
The Supreme Court rendered the 106-Tai-Shang-3231 Criminal Decision of November 2, 2017 (hereinafter, the "Decision"), holding that since the rule of strict proof does not apply to the confiscation of criminal proceeds as it is not criminal penalty, free proof alone will be sufficient.
According to the facts underlying this Decision, the original trial court rendered a decision holding that since the Appellant had committed offenses of waste disposal without a waste disposal permit, the Appellant was sentenced to one year and five months in prison along with the instruction that the criminal proceeds should be confiscated and collected for committing the offense of waste disposal without obtaining a waste disposal permit in accordance with Article 41, Paragraph 1 of the Waste Disposal Act. Dissatisfied, the Appellant appealed. One of the appeal reasons was that the original trial court rendered a decision to reverse the first instance decision and change the original sentence with the additional instruction in its text that the criminal proceeds of NT$320,000 which had not been attached in this case shall be confiscated. This decision was unfavorable to the Appellant and obviously violated the principle of adverse alteration prohibition under Article 370 of the Code of Criminal Procedure. In addition, the original trial court had failed to explore the weight of relevant wastes which had not been classified and could have been reused for sale and elected to estimate and project the Appellant's criminal proceeds. This also violated the principle of presumed innocence.
According to this Decision, after the Appellant's act was engaged,the requirements for confiscation under the Criminal Code were amended with a dedicated chapter added, and Article 2, Paragraph 2 of the Criminal Code was also revisedto elaborate that for punishment made as a confiscation, the law in force at the time of judgment shall apply. Both the above amendments became effective on July 1, 2016. Since the nature of confiscating criminal proceeds is similar to the equity measures against unjust enrichment and such confiscation is not criminal penalty, the rule of strict proof certainly does not apply and free proof would be sufficient. Therefore, if the court's calculation of criminal proceeds is based on evidence and materials in the case file and if certain arguments and explanation which are relied on as the basis are provided in the reasons, the court cannot be accused of legal violation directly.
If was further held in this Decision that since the first instance court had failed to take into account the above new provisions concerning confiscation, the original trial court reversed the decision and changed the original sentence. Since this did not violate the proviso of Article 370, Paragraph 1 of the Code of Criminal Procedure, the principle of adverse alteration prohibition certainly did not apply. In addition, the original decision calculated the Appellant's criminal proceeds in manners most favorable to the Appellant based on the quantities of steel wire purchased and the profit generated for each kilogram as stated by the Appellant on each occasion in the past and instructed the confiscation and collection of such criminal proceeds. This was not unlawful and pertained to the exercise of facts finding and discretionary authority of a trial court. Therefore, the principle of presumed innocence was not violated, either. Therefore, this Decision dismissed the appeal for a lack of legal formalities.
