August 2017
When a criminal defendant has reached a civil settlement with the victim whereby the victim has agreed to waive the remaining damages claims, the court will no longer confiscate proceeds from crime(Taiwan)
2016.08.23
Frank Sun
The Taiwan High Court rendered the 105-Shang-Su-492 Criminal Decision of August 23, 2016 (hereinafter, the "Decision"), holding that when a criminal defendant has reached a civil settlement with the victim whereby the victim has agreed to waive the remaining damages claims, the court will no longer confiscate proceeds from crime.
According to the facts underlying this Decision, the Defendant had obtained a loan secured by his motorcycle from A and subsequently sought to recover the motorcycle. However, A indicated that a guarantor who should be an operator of motorcycle leasing business should be sought before the motorcycle might be returned. On the day when Victim B went to the Defendant's company to verify the identity of the guarantor, the Defendant created the facade that B was willing to guarantee the Defendant's NT$1.5 million debt by forging B's signature in a promissory note as the issuer as well as a copy of B's identification certificate and profit-seeking business registration certificate. As a result, A was misled into allowing the Defendant to take back his motorcycle.
According to the Decision, after the Criminal Code was amended this time, proceeds from crime are confiscated under the Criminal Code merely to deprive offenders of their unjust enrichment as a result of a criminal offense in order to restore the existing lawful property order, not to impose criminal penalties. Article 38-1, Paragraph 5 of the Criminal Code as amended provides that if the proceeds from crime have been actually and legally returned to the victim, they will not be confiscated or recovered. This provision should include circumstances where the victim's damage has been compensated or his or her disposal right has been exercised according to the original property order. To wit, even if a criminal defendant has reached a civil settlement with the victim and has only compensated the victim for part of his or her damage, still when the victim agrees to waive the remaining damages claims, the criminal defendant's proceeds from crime will no longer be confiscated.
It was further held in this Decision that now that the criminal defendant and the victim had reached a civil settlement where part of the damage would be compensated and it had also been agreed that another part would be compensated by installment with the remaining damage claims waived, it was no longer necessary to confiscate or recover such proceeds of crime from the defendant.
Frank Sun
The Taiwan High Court rendered the 105-Shang-Su-492 Criminal Decision of August 23, 2016 (hereinafter, the "Decision"), holding that when a criminal defendant has reached a civil settlement with the victim whereby the victim has agreed to waive the remaining damages claims, the court will no longer confiscate proceeds from crime.
According to the facts underlying this Decision, the Defendant had obtained a loan secured by his motorcycle from A and subsequently sought to recover the motorcycle. However, A indicated that a guarantor who should be an operator of motorcycle leasing business should be sought before the motorcycle might be returned. On the day when Victim B went to the Defendant's company to verify the identity of the guarantor, the Defendant created the facade that B was willing to guarantee the Defendant's NT$1.5 million debt by forging B's signature in a promissory note as the issuer as well as a copy of B's identification certificate and profit-seeking business registration certificate. As a result, A was misled into allowing the Defendant to take back his motorcycle.
According to the Decision, after the Criminal Code was amended this time, proceeds from crime are confiscated under the Criminal Code merely to deprive offenders of their unjust enrichment as a result of a criminal offense in order to restore the existing lawful property order, not to impose criminal penalties. Article 38-1, Paragraph 5 of the Criminal Code as amended provides that if the proceeds from crime have been actually and legally returned to the victim, they will not be confiscated or recovered. This provision should include circumstances where the victim's damage has been compensated or his or her disposal right has been exercised according to the original property order. To wit, even if a criminal defendant has reached a civil settlement with the victim and has only compensated the victim for part of his or her damage, still when the victim agrees to waive the remaining damages claims, the criminal defendant's proceeds from crime will no longer be confiscated.
It was further held in this Decision that now that the criminal defendant and the victim had reached a civil settlement where part of the damage would be compensated and it had also been agreed that another part would be compensated by installment with the remaining damage claims waived, it was no longer necessary to confiscate or recover such proceeds of crime from the defendant.
