我國經濟犯罪之範圍，係由司法機關(司法院)與行政機關(法務部)
分別以作業性之行政規則頒訂，仍以侵害個人財產法益之金融犯罪為
規範對象。
就經濟犯罪所得，由於其性質屬於準不當得利之衡平措施，自應予以
追繳或抵償(再發還被害人或充公收歸國有)以修復正義，該行為只要
與法規範對立矛盾(即具有不法構成要件該當之違法性)即足，無庸探
究行為人之罪責要件。我國將犯罪所得規定為從刑，須待行為人(即
被告)受有罪科刑判決方能併宣告沒收，緩不濟急。
建議將犯罪所得追繳後發還被害人之個別法律，移置於刑法總則一體
適用，定性為強制處分，並將沒收、追繳、追徵或抵償自從刑之規定
刪除，另於刑事訴訟法宣示判決之條文增加發還被害人或得請求損害
賠償之人，且得由法院依職權或依檢察官之聲請權單獨宣告。
我國附帶民事訴訟受請求之被告，不限於刑事訴訟進行中之被告，尚包括「其他依民法應負賠償責任之人」，刑事庭法官遇有此種情形，因對渠等並無確定刑罰權有無及範圍之權限，在刑事訴訟程序的操作上格格不入，有仿襲德國刑事訴訟法第403條規定，被請求人應以刑事被告為限。
由於附帶民事訴訟規範之目的在避免雙重工作負擔及二次裁判，惟依
現行刑事訴訟法之規定，法官除刑事判決外，另需製作一份民事訴訟
判決，如此顯違反前揭附帶民事訴訟規範之目的；故正本清源之道，
乃無庸另製作一份附帶民事訴訟之判決，就犯罪不法利得，逕於刑事
判決主文中諭知發還被害人或給付若干金額予被害人。
被害人與加害人間共同參與之修復式司法近年來在世界各國實務及
學說均肯定其實踐層面之重要性，為具體落實憲法訴訟權應保障犯罪
被害人公平且有效的權利救濟途徑及程序主體性之地位，本文建議在
審理刑事案件之前階段即擴大強制調解及和解制度之運用，由被告及
被害人共同參與決定採取何種途徑最有利於促成實質修復正義之結
果，俾利被害人程序主體性之建立及擴大紛爭解決一次性之要求。 / Economic crime in Taiwan is defined by the administrative regulations of the Judicial Yuan and the Ministry of Justice, respectively. Such regulations are aimed at financial crimes that damage personal property. Because the proceeds of economic crimes are “quasi-kondiktionelle Ausgleichsmaßnahme”, the courts should seize the profits, and then use them to either compensate victims or confiscate them in the name of serving justice. So long as this offense is contradictory to criminal law (i.e. constituting the penal code and finding no specific legal cause for that offense), the courts need not review the problem of offender's guilt. As ill-gotten gains are stipulated as “Nebenstrafe” in the Taiwan penal code, the courts cannot confiscate those gains unless there is a simultaneous conviction, which seems too slow. The following suggestions are presented. The individual laws regulating “Verfall” and compensation to the victims should be reorganized in the penal code and characterized as “maßnahme”. The legal effect of these laws as “Nebenstrafe” should be deleted. The articles relating to the compensation of criminal proceeds to the victims should be increased as well. In addition, the courts should be allowed to announce verdicts either alone by its authority or according to the prosecutor’s request.
In Taiwan, defendants accused during the adhesion process are not limited to being defendants in the process of criminal litigation, but also include other persons who should bear damages in accordance with civil law. When criminal court judges face this situation, since it is not certain whether there is a right to impose criminal punishment, or what the scope of punishment should be, there are inconsistencies in the operations of the criminal litigation procedure. There have been attempts to imitate Germany’s Criminal Litigation Law Clause 403, in which the accused should be limited to criminal defendants.
The purpose of the rules on the adhesion process is to prevent a double workload and multiple judgments. However, according to existing requirements for criminal litigation, in addition to criminal judgments, judges must also make civil litigation judgments. This violates the aforementioned purpose of adhesion process rules. Thus, the way to rectify this situation is to create another adhesion process judgment based on the proceeds of crime, in order to assign restitution or to pay a certain amount to the victim, inside the main text of the criminal judgment.
Restorative justice, in which the victim and offender jointly participate, has recently been affirmed in its importance, both in theory and in practice, all over the world. In order to concretely realize the principle that constitutional litigation rights should protect crime victims, as well as provide fair and effective remedial paths and procedural subjectivity, this study suggested that in the stage prior to judging criminal cases, there should be expanded use of enforced arbitration and mediation systems, in which the defendant and the victim jointly participate, in order to determine the best course for promoting restorative justice, to satisfy the demand for victim procedural subjectivity, and to expand the one-time character of dispute resolutions.
| Identifer | oai:union.ndltd.org:CHENGCHI/G0097961101 |
| Creators | 黃士元, Huang, Shih Yuan |
| Publisher | 國立政治大學 |
| Source Sets | National Chengchi University Libraries |
| Language | 中文 |
| Detected Language | English |
| Type | text |
| Rights | Copyright © nccu library on behalf of the copyright holders |
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