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The New Confiscation Procedure under the Amendment to the Code of Criminal Procedure



An amendment to the Code of Criminal Procedure provisions governing confiscation and preventive seizure passed the third reading of the Legislative Yuan on 27 May 2016, and came into effect on 1 July 2006. The amendment followed the 17 December 2015 amendment to the Criminal Code provisions governing confiscation of third parties' illegal enrichment, and added some complementaryI.        The confiscation under the Code of Criminal Procedure is defined to include alternative measures (e.g., expropriation), while the provisions governing alternative measures to be taken for implementation of property-related penalties other than confiscation (such as those in Articles 3-1 and Paragraphs 1 and 3 of Article 470) are deleted. 
 
II.      As confiscation is no longer deemed a subordinate punishment under the prevailing Criminal Code, the amendment requires confiscation action to be indicated in the Text section and Reason section of a conviction judgment (Subparagraph 1 of Article 309, Subparagraph 6 of Article 310 and Paragraph 2 of Article 455-26).
 
III.    A section dedicated to the special confiscation procedure is added to set forth the procedure for confiscation or petitioning for a declaration of individual confiscation of third parties' property in criminal cases.
 
(1) Confiscation of Third Parties' Property
 
1.      A third party whose property is likely to be confiscated may petition the court to allow him/her to participate in the confiscation procedure before the end of the oral debate in a trial on matter of facts in the principal case. Even if the third party does not make such a petition, the court may, by virtue of its authority, order the third party to participate in a confiscation procedure per a ruling if it considers it necessary. However, if a third party tells the court or the prosecutor that he/she will not oppose the confiscation of his/her property, the court need not order the third party to participate in the confiscation procedure. The rule applies mutatis mutandis to private prosecution, summary proceedings and bargaining procedures involving confiscation of third parties' property (Article 455-12).
 
2.      When initiating a prosecution or during trial, the prosecutor may petition the court for confiscating a third party's property and obligating the prosecutor to notify the third party so that the third party can have the opportunity to state his/her opinion (Article 455-13).
 
3.      Before rendering a ruling for or against a person's participation in a confiscation procedure, the court shall notify the petitioner, the parties to the principal case, and their agents, advocates or assistants so that they can have the opportunity to state their opinions. (Article 455-14) If the court finds that a petition is not in compliance with the legal procedures or not permissible by law, or has no merits, it should dismiss the petition per a ruling, provided that where the deficiency in legal procedures is amendable, the court shall order an amendment to be made within a given time limit before dismissing the petition. If the court finds that a petition for participation in a confiscation procedure has merits, the court should approve the petition per a ruling, and no appeal against such ruling may be lodged (Article 455-16).
 
4.      Where a confiscation procedure costs a large sum and is not procedurally economical, upon the consent of the prosecutor or the agent of a private prosecutor, the court may exempt a third party's property from confiscation, provided that the prosecutor or the agent of the private prosecutor may withdraw the consent before the end of the oral debate in the trial on matter of facts in the principal case (Article 455-15).
 
5.      Regardless of whether the trial proceedings for the principal case is a regular trial procedure, once the court rules for a person's participation in a confiscation procedure, a regular procedure should be conducted so as to protect the participant's right in litigation (Article 455-18). However, participation in the confiscation procedure is incidental to the proceedings for the principal case. Thus, neither the sequence or procedure for oral arguments nor the rules for cross-examination apply to participation in a confiscation procedure so that the defendant's principal case will not be impeded by any procedural complexity (Article 455-23 and Paragraph 1 of Article 455-24).
 
6.      Provisions governing defendants' rights in litigation apply mutatis mutandis to confiscation of the property of participants in confiscation procedures (Article 455-19). Basically, a participant is not required to be personally present at the procedure. He/she may appoint an agent to be present on his/her behalf. Nevertheless, if the court finds that a participant has to be present, it may order the participant to appear, or arrest the participant if he/she fails to appear without justifiable reasons after being legally summoned by the court (Article 455-21). If the court finds that a participant need not be present, and the participant does not appoint any agent to be present for him/her, the court may render a judgment without waiting for his/her statement if he/she fails to appear in court after having been legally summoned or refuses to testify in court without justification (Paragraph 2 of Article 455-24). 
 
7.      To avoid contradictory judgment reasons or delaying the proceedings, the effects of a judgment on an appeal against a judgment on the principal case should bind the confiscation case, but an appeal against a judgment on the confiscation case does not bind a judgment on the principal case. In appealing to the court of second instance, a participant may not again dispute any criminal fact established by the court of first instance or the confiscation of his/her property, except for one of the situations set forth in the proviso of Paragraph 2 of the same article (Article 455-27).
 
8.      After a third party has received a final judgment on confiscation of his/her property, if the third party without negligence fails to participate in the confiscation procedure, he/she may, within 30 days of learning of the final confiscation judgment, petition the court pronouncing the final judgment for revocation of the judgment. No such petition may be filed after the judgment has become final for over five years (Article 455-29). A petition for revocation of a final confiscation judgment has no effect of staying the enforcement of the judgment. However, the prosecutor at the court having jurisdiction over the confiscation case is empowered to order a stay of the enforcement procedure if the prosecutor considers the stay necessary for protecting the rights or interests of the owner of the property to be confiscated from damage as a result of the closure of the enforcement procedure before a final ruling on the revocation of the final confiscation judgment is rendered (Article 455-30).  Before rendering a ruling for or against a petition for revocation of a final confiscation judgment, the court should notify the petitioner, the prosecutor, and the agent of the private prosecutor and tell them to state the opinions (Article 455-31).  Appeals and re-appeals against court rulings for or against petitions for revocation of final confiscation judgments may be lodged. Unless otherwise specified in Part VII-1 of the Code of Criminal Procedure, Part IV of the Code applies mutatis mutandis to such appeals and re-appeals (Article 455-32).  After a ruling to approve the revocation of a confiscation judgment becomes final, the court should retry the case according to the procedure prior to the rendering of the revoked judgment (Article 455-33).  
 
(2) Individual Confiscation Pronounced by the Prosecutor
 
1.      In line with an amendment to the Criminal Code, the Code of Criminal Procedure is amended to read that objects subject to individual confiscation by the court in response to petitions include the property derived from commission of the offense as well as the property used for committing the offense or for preparation to commit the offense, or acquired from the commission of the offense when the property was owned by the accused (Article 259-1).
 
2.      Appeals and re-appeals against court rulings to approve or dismiss petitions for individual confiscation of property may be lodged (Article 455-36).
 
3.      The provisions governing third parties' participation in confiscation procedures apply mutatis mutandis to the procedures for individual confiscation of property (Article 455-37).
 
IV.   Preventive Seizure
 
(1)       To prevent suspects, the accused, or third parties from disposing of their property, provisions are added to allow the court to seize the proper amount of the property of a suspect, the accused, or a third party pending a final judgment if necessary. (Paragraph 2 of Article 133) In addition, in order to dispossess offenders of all their gains from committing offenses and protect the rights and interests of bona fide third parties, provisions are added to prohibit disposal of any seized property without obstructing attachment or seizure actions taken in the course of civil provisional seizure, preliminary injunction or final enforcement (Paragraph 6 of Article 133).
 
(2)       The authority to order seizure is reserved for the judges; that is, a petition should be filed with the court for rendering of an attachment ruling before commencing the attachment. However, to facilitate judicial operations, in the event that there is evidence of offenses, the attachment accompanies a search action, or the obligee of the subject to be attached consents, or in the case of an emergency, petition for a court ruling to approve the attachment action can be exempt. However, if attachment is conducted in the case of an emergency, a report on such attachment should be filed with the competent court within three days of the attachment (Articles 133-1 and 133-2).
 
(3)       Property that may depreciate or needs high safekeeping costs is added to the list of objects subject to auction, and auctioning is not the only method to sell such property. (Paragraph 1 of Article 141) To meet the purpose of attachment and comply with the principle of proportionality, bonds can be furnished to avoid attachment (Article 142-1).
 
V.     Procedural Applicability of the Amendment
 
In accordance with the added Article 7-9 of the Enforcement Rules of the Code of Criminal Procedure, the above amendment to the Code of Criminal Code came into force as of 1 July 2016. For cases pending in courts of various levels before the amendment came into effect, the subsequent proceedings should be concluded in accordance with the amended provisions, provided that the proceedings that had been legally conducted before the amendment came into effect remain effective.
 


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