| Summary: | 碩士 === 國立清華大學 === 科技法律研究所 === 107 === The objective of extended confiscation is to deprive the proceeds of crime and thus achieve the purpose of combating crime. Directive 2014/42/EU is, therefore, be issued to improve the extended confiscation since Framework Decision 2005/212/JHA was not implemented effectively. As the Member State of EU, Germany has amended its Criminal Law to comply with the Directive in 2017. However, this paper believes that the extended confiscation in amended German Criminal Law not only inconsistent with the substantive meaning of the Directive but also violated the principle of equality and proportionality. Therefore, in promoting the implementation of extended confiscation, Taiwan should recognize the meaning of Directive carefully and refer German’s experience to avoid using this measure aggressively.
This paper believes that Taiwan at present should limit the implementation of extended confiscation as Germany did before 2017, such as being implemented in several serious crime preferentially. This paper also believes that Taiwan should follow the rules in the Directive and German Criminal Law regarding the burden of proof should be on the prosecutions, instead of the suspected or accused person. That is, the extended confiscation should be possible when the Court considers the specific circumstances of the case that the evidence provided by prosecutions. There is still no room for Reverse Burden of Proof in Taiwan’s criminal justice system, even though the burden of proof of extended confiscation is reduced.
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