經濟犯罪被害人財產權保障之救濟--從憲法觀點論刑事附帶民事訴訟之修改方向

黃士元

3.236.47.240，Hello！

Close
Search Quick Search Advanced Search Publication Search	Personal Service Member Login Searching History Use Bonus Card SYMSKAN
Browse Browse by University of Graduate Thesis Browse by Pinyin of Graduate Thesis Browse by Conference Proceedings Topic Browse by Conference Proceedings Publisher Browse by Pinyin of Conference Proceedings Browse by eBook Category Browse by eBook Topic Browse by eBook Publisher
Customer Services Authorize Airiti Recommend a Journal

Search Symbol (Half-width)	Description of Search Symbols
Space	"AND" indicates the intertwining of key terms used in a search
Double Quotation Marks ("") ( " " )	Double quotation marks indicate the beginning and end of a phrase, and the search will only include terms that appear in the same order of those within the quotations. Example: "image process" ： " image process "
?	Indicates a variable letter. Entering two ? will indicate two variable letters, and so on. Example: "Appl?", search results will yield apple, apply… e , appl y … ( (often used to English word searches) )
*	Indicates an unlimited number of variable letters to follow, from 1~n. Example: Enter "appl*", search results will yield apple, apples, apply, applied, application…(often used in English word searches) e , appl es , appl y , appl ied , appl ication … ( (often used to English word searches) )
AND、OR、NOT	Boolean logic combinations of key words is a skill used to expand or refine search parameters. (1) AND (1) AND: Refines search parameters (2) OR (2) OR: Expands search parameters (3) NOT: Excludes irrelevant parameters

DOI stands for Digital Object Identifier （ D igital O bject I dentifier ） ,
and is the unique identifier for objects on the internet. It can be used to create persistent link and to cite articles.

Using DOI as a persistent link

To create a persistent link, add「http://dx.doi.org/」「 http://dx.doi.org/ 」 before a DOI.
For instance, if the DOI of an article is 10.5297/ser.1201.002 , you can link persistently to the article by entering the following link in your browser: http://dx.doi.org/ 10.5297/ser.1201.002 。
The DOI link will always direct you to the most updated article page no matter how the publisher changes the document's position, avoiding errors when engaging in important research.

Cite a document with DOI

When citing references, you should also cite the DOI if the article has one. If your citation guideline does not include DOIs, you may cite the DOI link.

DOIs allow accurate citations, improve academic contents connections, and allow users to gain better experience across different platforms. Currently, there are more than 70 million DOIs registered for academic contents. If you want to understand more about DOI, please visit airiti DOI Registration （ doi.airiti.com ）。

Data Source

College of Law > In-service Master's Program, The Master of Laws Program for Executives, College of Law
Social Sciences > Law

Bibliography Management Tool

Related Links

Report an Issue

Search for full text in Holdings

There is no full-text available at the moment. Airiti would like to request author's authorization. I would like to provide authorization.

經濟犯罪被害人財產權保障之救濟--從憲法觀點論刑事附帶民事訴訟之修改方向

The remedies for the victims protection of the economic criminal property right—the legislative revision opinions upon adhesionprocess in our criminal procedure code from the constitutional viewpoint

黃士元 , Masters　　Advisor：楊雲驊　　

繁體中文

經濟犯罪；不法利得；充公(沒收) ；追繳；發還被害人；附帶民事訴訟；修復式正義；準不當得利之衡平措施； economic crime ； the proceeds of crime ； confiscation ； Verfall ； restitution ； Adhesionprocess ； restorative justice ； quasi-kondiktionelle Ausgleichsmaßnahme

Abstract │ Reference (158) │ Times Cited (3) │ Altmetrics

Abstract 〈TOP〉

Parallel Abstract 〈TOP〉

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.

Reference ( 158 ) 〈TOP〉

柯耀程，沒收、追徵、追繳與抵償制度之適用與檢討，法令月刊，59卷6期，
連結：
陳明燦，我國都市土地整體開發與使用管制之法制分析：以都市計畫法第17條為中心，台北大學法學論叢，第60期，2006年。
連結：
常慧中，論地方自治團體所有土地被中央撥用之財產權保障問題(上)(下)，國有財產局雙月刊第36期(2006年4月)、第37期(2006年6月)。
連結：
傅美惠，論沒收，刑法修正草案「沒收」規範評析，中正法學集刊，第17期，2004年10月。
連結：
熊秉元，法律的經濟分析：方法論上的幾點考慮，台大法學論叢第29卷第1期。
連結：

Times Cited (3) 〈TOP〉

Altmetrics

〈TOP〉

E-mail ：

When an article is available to download, a notice will be sent to your mailbox address.

E-mail ：