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Changes in Theories on Confiscation of Principal Co-offenders' Related Criminal Gains
It was resolved at the 13th meeting of the criminal tribunals of the Supreme Court on 11 August 2015 that two judicial precedents stating that related criminal gains of principal co-offenders should be no longer citable.
On the confiscation of the related criminal gains of principal co-offenders, Taiwan's courts usually cited Supreme Court Criminal Precedent Nos. 64-Tai-Shang-2613 and 70-Tai-Shang-1186 and Judicial Yuan Interpretation No. Yuan-2024 to find that as co-offenders should be held liable for all the facts regarding their crimes, their criminal gains should be tallied together and be jointly confiscated. Thus, when informing the offenders of the sum to be confiscated, Taiwan's courts usually ordered the confiscation of related criminal gains without indicating the actual criminal gains of individual offenders.
However, criminal laws should follow the principle of no crime without law and the principle of proportionality. Criminal laws and special criminal laws of Taiwan contain no provisions governing confiscation of related criminal gains of co-offenders. As such confiscation is not prescribed in a law, related criminal gains of co-offenders should not be subject to joint confiscation in accordance with any judicial interpretation; otherwise, the confiscation action would violate the principle of no crime without law as it is based on judicial interpretations rather than legislative enactments. Moreover, criminal punishments should comply with the principle of retributive justice. In other words, restrictions on personal freedom and property rights should be in proportion to the legal interests to be protected. Under the principle of proportionality, the degree of criminal punishment on an offender should be equivalent to the liability of the offender. Thus, even though principal co-offenders should be held liable for the entire criminal results according to the principle of joint liability, when imposing criminal punishments on individual principal offenders, the court should still consider whether each principal offender is receiving a fair punishment. Even if all the principal co-offenders receive the same punishments, legal justice is not necessarily upheld.
In the years before the aforesaid Supreme Court resolution was adopted, the Supreme Court determined in several cases that the theory of confiscation of related criminal gains of co-offenders violated the principle of no crime without law and the principle of personal responsibility as it subjected joint defendants who had no criminal gains to confiscation simply because they were related to such gains, and that only the actual criminal gains of individual co-offenders should be subject to confiscation. For instance, in the Nankang Exhibition Center corruption case, the court of first instance found that as Wu Shu-chen and Yu Chen-hsien were principal co-offenders because they jointly accepted bribes in breach of their official duties as government employees, so all the related criminal gains they received should be confiscated. (Subsequently, the court hearing the first retrial of the case found that they were suspected of jointly seeking profits and disclosing confidential information rather than accepting bribes in breach of their official duties as government employees.) However, Supreme Court Judgment No. 101-Tai-Shang-3895 reversed the judgment of the High Court, stating, "Co-offenders of a crime might make different contributions to the crime and might have some or no gains from the crime. They should not be given equal punishment. The laws of Taiwan do not prescribe that all the illegal gains of the co-offenders should be confiscated as long as those gains are related to the crime." Then the Supreme Court found that only the gains of Wu Shu-chen were criminal gains, and it was unnecessary to subject the other co-offenders' gains to confiscation. Regarding Yu Chen-hsien, whose charges were reviewed as a separate case because he was a government employee, the Supreme Court found that even though Yu disclosed the list of the tender evaluation committee members for the Nangang Exhibition Center contract or the qualifications of tenderers, he did not intend to act with Wu Shu-chen in accepting consideration from other co-offenders, and accepting such consideration was beyond his plan to commit the crime; therefore, Yu should not be subject to confiscation simply because he was related to Wu Shu-chen's criminal gains. Criminal Judgment No. 103-Tai-Shang-2103 also affirmed the decision to exempt Yu from confiscation simply for his relation to Wu's criminal gains, stating, "Only the property or illegal interests the offenders and their co-offenders gained should be recovered. If neither the offenders nor their co-offenders gained any interests, nothing should be confiscated or recovered."
After the theory of confiscation of related gains of co-offenders was nullified at the 13th meeting of the criminal tribunals of the Supreme Court on August 11, 2015, the trial court hearing cases will have to investigate each offender's share of the criminal gains so as to comply with the principle of no crime without law, the principle of personal responsibility and the principle of proportionality, and avoid disputes over people's property rights protected by the Constitution.