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Latest Supreme Court Judgements on Joint Confiscation against Joint Offenders.
Following the resolution reached at its 13th criminal divisions conference on 11 August 2015, invalidating two precedents that permitted joint confiscation of the proceeds of crime of joint offenders, the Supreme Court concluded in the 14th criminal divisions conference on 1 September 2015 that its opinion has changed from joint confiscation and forced collection of joint offenders to confiscation or forced collection based on the amount received by each offender.
After the said opinion was confirmed, Supreme Court Judgments No. 2521, 2596, 2664, and 2924 (2015) all indicated that confiscation is disposition that deprives the owner of his/her ownership for nationalization because of a crime; the confiscation, forced collection, and payment are to deprive the criminals of proceeds of the crime (the proceeds themselves or their substitute), so that they cannot benefit from the outcome of crime; the purpose is to take away the interest received, so without the interest there is no deprivation of property, otherwise the deprivation beyond personal gain would be no different from assuming punishment in the place of other participants, which violates the principle of legality in crime and punishment, principle of individual responsibility, and principle of consistency between crime and penalty. Therefore, the confiscation, forced collection, and demanding payment of the proceeds of the crime of joint offenders shall be based on the amount each person received, and payment should be limited to the amount each has lost. As for whether each joint offenders has received criminal proceeds, and the amount of such proceeds, they are to be decided by the court reviewing the facts on the basis of court documents and investigation.
However, Supreme Court Judgment No. 2521 (2015) indicated that if the proceeds of joint crime shall be returned to the victims according to the law, because the joint infringer shall bear joint responsibility to compensate for the loss of the victims (citing Judicial Yuan Interpretation No. 2024), the construction payment that defendant and others defrauded from New Taipei City Linkou District Office by jointly overstating the quantity shall be returned to New Taipei City Linkou District Office jointly by the joint offenders instead of demanding return of the actual sum received by the defendant.
Furthermore, Supreme Court Judgment No. 2596 (2015) indicated that if proceeds of the crime are regarded as an aggravated element of crime, because joint offenders shall take full responsibility for all criminal facts, the proceeds of crime shall be calculated as a whole in deciding whether the element is present. Therefore, it agreed with the judgment of the previous instance, which calculated the proceeds of crime of joint offenders at NTD 100 million and applied the aggravated punishment of Art. 171.2 of the Securities and Exchange Act.
Therefore, the Supreme Court ruled that confiscation of proceeds of crime of joint offenders should be decided by the amount actually received by each defendant, though where the criminal proceeds shall be returned to the victims according to the law, the joint offenders shall bear joint responsibility. If criminal proceeds are deemed an aggravated element, they shall also be calculated collectively to decide whether the aggravated regulation should apply. The Supreme Court's different interpretations and rulings on criminal proceeds may be problematic in actual application, which may be resolved by future judicial judgements.