Introduction
Forfeiture refers to a legal mechanism through which the state or its agencies seize assets, including real estate, vehicles, money, goods, financial rights, and even businesses.Footnote 1 In recent years, removing assets from criminals through simplified forfeiture procedures has become a central policy tool in crime control around the globe. Governments are increasingly employing forfeiture to combat crime and are amending existing frameworks or establishing new ones to facilitate the forfeiture of crime proceeds. While forfeiture is a recognised legal institution in both continental European and common law jurisdictions, it has evolved into divergent forms. On the one hand, some continental European countries, such as Austria, Italy, Germany, and Poland, have incorporated new provisions into their criminal legal systems to better serve the goal of confiscating crime proceeds (the integrated model).Footnote 2 On the other hand, several common law countries, such as Australia, Canada, the United Kingdom, and the United States, have developed an independent procedure of civil forfeiture, alongside existing criminal proceedings, to strengthen the overall impact of forfeiture measures (the separated model).Footnote 3
Even though civil law and common law traditions diverge in their institutional treatment of new forfeiture, they share important substantive commonalities. In both systems, whether located within criminal law as in the civil law group’s integrated model, or within civil procedure as in the common law group’s separated model, the new forfeiture regime has universal features. These include targeting property rather than persons, pursuing compensatory rather than punitive objectives, and applying a lower standard of proof. Regardless of whether the mechanism is institutionally integrated or separated, the different forfeiture regimes serve comparable functions, follow similar procedural considerations, and respond to the same set of international and regional legal imperatives, such as the United Nations Convention against Transnational Organized Crime (UNTOC), the United Nations Convention against Corruption (UNCAC), and the EU Directive 2014/42/EU.Footnote 4
Following this global trend of combating crime through forfeiture, Taiwan began to amend its criminal law regime in the mid-2010s by introducing new forfeiture mechanisms, including the integrated model inspired by Germany as well as the fugitive disentitlement doctrine from the US.Footnote 5 Traditionally, there were two main types of criminal dispositions in Taiwan that can be imposed on convicted defendants: punishment and rehabilitative measures.Footnote 6 Punishment itself is further divided into principal and accessory forms,Footnote 7 and forfeiture used to be categorised as a form of accessory punishment of limited scope.Footnote 8 The 2016 amendments to Taiwan’s criminal forfeiture, however, expanded its scope and stripped it of its conventional role as an accessory punishment, reclassifying forfeiture as an independent and non-punitive criminal disposition, distinct from both punishment and rehabilitative measures.Footnote 9 Moreover, for certain offences, including money laundering, drug offences, and sexual exploitation of minors, new legislation authorises criminal proceeds to be confiscated even if they are not connected with the offence charged, so long as their origin in ‘other’ criminal conduct is established.
Against this background, this article argues that Taiwan’s new criminal forfeiture system challenges three foundational binaries in law and exemplifies a broader trend towards the instrumentalisation of criminal law. It discloses the growing influence of private-law logics in Taiwan’s criminal forfeiture, casts doubt on the assumed criminal-civil divide in the legal system, and sheds light on the implications arising from the non-punitive, regulatory turn in Taiwan’s criminal legal framework. This article shows that Taiwan’s criminal law, particularly the regime of criminal forfeiture, is undergoing a significant transformation away from its traditional roles of censuring criminal conduct and rehabilitating offenders towards a non-punitive role. This new role is marked by emerging private-law rationales and hybrid criminal-civil procedures. This article further establishes that, freed from the constraints of core criminal law principles, the reformed criminal forfeiture regime goes beyond the third binary in law, namely the punishment-regulation distinction, and functions as a regulatory tool within Taiwan’s criminal justice system.
To highlight the uniqueness of Taiwan’s new regime of criminal forfeiture and support the argument of this article, the US is selected as the primary comparative reference for five reasons. First, prior to Taiwan’s adoption of the integrated model in 2016, the US separated approach was regarded as a potential alternative, prompting some Taiwanese scholars to publish comprehensive and comparative analyses of the US model.Footnote 10 Second, within the integrated model that Taiwan has adopted, the legislature explicitly draws on the fugitive disentitlement doctrine developed in the US,Footnote 11 citing it as an important reference for the newly created form of independent criminal forfeiture that targets property instead of persons.Footnote 12 Third, in contrast to Taiwan’s integrated model, the US separated model maintains a dual-track regime that distinguishes between criminal forfeiture and civil forfeiture.Footnote 13 This institutional divergence provides a particularly sharp point of comparison between the two groups. Fourth, in addition to its influence on legislation and academic discussion, the Taiwanese Supreme Court has also actively invoked US law to support its decisions.Footnote 14 This judicial engagement further demonstrates that the US model plays an important role in shaping the doctrinal development of Taiwan’s forfeiture law. Fifth, the US experience helps to substantiate this article’s argument about the instrumentalisation of criminal law, as it provides a clear illustration of how criminal law can be deployed as a regulatory tool.Footnote 15 Therefore, US forfeiture law and practice provide a valuable point of comparison in the assessment of Taiwan’s criminal forfeiture.Footnote 16 Moreover, developments in two additional jurisdictions, Italy and England and Wales, are taken into account to provide comparative support for this article’s claim regarding the pragmatic turn within the regime of asset forfeiture.
The remainder of this article is organised as follows. The following section outlines three fundamental distinctions in law, that is, the public-private, criminal-civil, and punishment-regulation binaries. It then traces the legal evolution of Taiwan’s criminal forfeiture, detailing its origins, the challenges it has faced, and its transformations since its establishment in the 1930s. The subsequent section uncovers the underlying private-law logic of the amended criminal forfeiture system. By analysing two influential Constitutional Court judgments, it clarifies how Taiwan’s criminal forfeiture adopts the follow-the-money approach, shifts its focus from persons to property, and blurs the traditional public-private law distinction. The article disentangles the criminal-civil binary by demonstrating that several core principles of criminal law do not apply to criminal forfeiture as it does not possess the characteristics of a typical criminal measure, thereby indicating a shift towards pragmatism over protection. The article then turns to the third binary in law: the dichotomy between punishment and regulation. It articulates the growing trend towards non-punitive regulation in criminal law and the instrumentalisation of criminal law, with Taiwan’s new criminal forfeiture serving as a prime example. The last section summarises the main findings of this article and offers concluding remarks.
Three core binaries in law
There are some well-known binaries in traditional legal thought, one of which is the distinction between public law and private law. The public-private binary has played a dominant role since the early 19th century, when the market was invoked as a new source of legitimacy for the distinction between public law and private law,Footnote 17 and gained further prominence during the second half of the 19th century with the rise of the school of classical legal thought.Footnote 18 The distinction between public and private realms relates to the legitimacy of state intervention in the regulation of human activities. In the public realm, the state’s paternalistic role is deemed legitimate and necessary to promote the public interest. By contrast, in the private realm, individuals interact with each other freely and state intervention is minimal, and aggressive intervention from the state is presumed illegitimate.Footnote 19
The distinction between public and private realms also places law into different categories. Public law, on the one hand, includes constitutional law, criminal law, administrative law, tax law, and other highly regulatory laws.Footnote 20 Private law, on the other hand, comprises the law of transactions, including contracts, property, torts, and trade law.Footnote 21 Public law governs both horizontal relations between governmental sectors and vertical relations between the government and private entities. By contrast, private law concerns horizontal relations among private entities.Footnote 22 Public law is believed to advance the well-being of the general public, and private law, on the theoretical basis of the will theory and the Millian harm principle,Footnote 23 helps individuals realise their rights and protects them from undue infringement.Footnote 24
The dichotomy between public and private legal regimes, however, is descriptive rather than normative and can vary across jurisdictions. Criminal law in Germany, for example, is classified as public law, while in France criminal law is deemed a type of private law.Footnote 25 The public-private distinction in law has attracted considerable academic attention, including reflection on its theoretical basis.Footnote 26 It has also generated extensive discussions and debates in various legal subfields, such as labour law,Footnote 27 contract law,Footnote 28 administrative law,Footnote 29 and family law,Footnote 30 casting doubt on the distinction between the two.
Another well-known dichotomy in law is the distinction between criminal law and civil law. Unlike the public-private divide, which is more theoretical and primarily discussed in academic circles, the criminal-civil distinction is firmly rooted in real-world legal practice. The court system in the United States, for example, is primarily organised along the criminal-civil divide.Footnote 31 Historically, legal systems around the world have recognised the difference between criminal and civil law, and today, the criminal-civil dichotomy remains a foundational element of modern legal frameworks. There are several key differences between the two branches, starting with their terminology: in civil law, terms such as ‘violation’ or ‘breach’ are frequently used, whereas in criminal law, such actions are referred to as crimes. Similarly, civil law deals with sanctions or liability, while criminal law imposes punishments.Footnote 32 Beyond vocabulary, the two branches also differ in principles. Certain legal doctrines apply only to criminal law due to criminal law’s significant intrusion into human rights and human liberty, including the rule of lenity, the void-for-vagueness doctrine, and the prohibition against ex post facto laws.Footnote 33 It is rare to find similar principles in civil law. Furthermore, criminal law is said to have three features absent from civil law: condemnation, punishment, and stronger procedural safeguards.Footnote 34 Therefore, unlike the public-private distinction, the divide between criminal law and civil law carries practical weight.
Even though a rough distinction between criminal and civil law can be made, where to draw a clear-cut line between the two has long been a subject of intense debate. One scholar even remarked that ‘civil law may be described as all law which is not criminal law’,Footnote 35 highlighting the difficulty in defining civil law positively rather than by exclusion. Traditionally, the civil law category, on the one hand, includes various areas of law such as property, torts, family law, and contract law. On the other hand, criminal law is a distinctive field of its own kind with unique terminology and principles.Footnote 36 However, in recent decades we have witnessed certain legal developments within civil law that have increasingly blurred the demarcation between the two legal domains. Measures such as civil fines,Footnote 37 debarment,Footnote 38 civil commitment,Footnote 39 and sex offender registrationFootnote 40 illustrate how civil sanctions can carry punitive elements typically associated with criminal law.
Originating from the broader distinction between criminal and civil law, a third significant binary in law has emerged: the difference between punishment and regulation. It is easier to understand the difference between the two by giving an example. It is widely accepted that if detention occurs within a criminal context, it constitutes imprisonment – a clear form of punishment. Conversely, if detention is carried out in a civil context, such as civil commitment, it is considered regulatory and remedial rather than punitive. Regulatory measures are often viewed as a form of decriminalisation, allowing the state to achieve its objectives more effectively and with fewer burdens than traditional punitive measures. Several countries have increasingly turned to regulation as an alternative to punishment.Footnote 41 This practice, however, has also drawn criticism for lacking sufficient safeguards for the individuals targeted.Footnote 42 Therefore, where to draw a clear distinction between punishment and regulation has become a thorny issue. The US Supreme Court, for instance, developed a seven-part test in a 1960s case involving the civil revocation of citizenship from two draft resisters.Footnote 43 The US Supreme Court ruled that the deprivation of citizenship was punitive in nature and thus required the special protections of criminal proceedings.Footnote 44 The test considered factors such as whether the sanction imposed an affirmative restraint, whether it aligned with historical notions of punishment, whether it served punitive aims such as retribution or deterrence, and whether it was excessive relative to a legitimate regulatory purpose.Footnote 45
Due to the complexity of the original test, some US courts later developed more streamlined frameworks. The US Court of Appeals for the Third Circuit, for example, introduced a three-part test in a case concerning Megan’s Law, focusing on the legislative intent, objective purpose, and practical effect of the law.Footnote 46 It concluded that sex offender registration and community notification were regulatory, not punitive, as they aimed to enhance public safety.Footnote 47 Eventually, the US Supreme Court reduced the framework further to a two-part test examining only a measure’s purpose and effect. Two key cases concerned civil commitments of individuals who were deemed likely to engage in predatory acts of sexual violence due to a mental abnormality or personality disorder,Footnote 48 and the retroactive application of sex offender registration, respectively.Footnote 49 The US Supreme Court determined that while the relevant laws imposed burdens on the individuals concerned, they were neither retributive nor excessive and thus did not constitute punishment under constitutional scrutiny. That is to say, those measures were regulatory rather than punitive and hence not subject to the principles applicable exclusively to criminal sanctions.
Criminal forfeiture in Taiwan: a historical overview
This section presents a historical overview of criminal forfeiture in Taiwan, focusing on the evolution of the confiscation of crime proceeds. It examines the development of criminal forfeiture over time, revealing three pivotal shifts: an expansion of its scope from limited to broad, a functional reorientation of its approach from punitive to non-punitive, and a repositioning from an ancillary measure to an independent legal mechanism. Following the 2016 and subsequent reforms, Taiwan now operates three types of criminal forfeiture: traditional in personam forfeiture, newly created independent in rem forfeiture, and newly created extended forfeiture. Although these transitions and types have successfully restructured the criminal forfeiture framework and enhanced its operational reach, they have concurrently given rise to novel theoretical and practical challenges to entrenched legal binaries.
The outset
Criminal forfeiture in Taiwan was originally designed as a form of accessory punishment when the modern criminal code was first enacted in 1935.Footnote 50 This framework remained in place for more than eighty years, with minor revisions in 2006, until a major overhaul took effect in 2016. Under its traditional form, criminal forfeiture was used to confiscate three categories of property: contraband, instruments used in the commission of crimes, and the proceeds or products derived from criminal activities.Footnote 51 As the traditional form of criminal forfeiture primarily targeted proceeds that were directly associated with an offence, if the original assets were unavailable for confiscation, their equivalent value could be recovered via retrieval, collection, or redemption.Footnote 52 Given the characterisation of criminal forfeiture as an accessory punishment, Taiwan’s Supreme Court limited the applicability of criminal forfeiture by establishing an influential principle: forfeiture of crime proceeds must accompany a principal punishment.Footnote 53 In other words, forfeiture of crime proceeds could not be imposed independently; instead, it could be declared only where a principal punishment was imposed as part of the conviction.Footnote 54
At that time, forfeiture of crime proceeds drew significant criticism from legal scholars, primarily because of its limited scope and its accessory nature. Only the defendant’s own criminal proceeds could be confiscated, and such proceeds had to be directly connected with the charged offence. If the proceeds were transferred to a third party or converted into another form (eg from cash to diamonds or vice versa), they could not be forfeited unless the law stipulated otherwise.Footnote 55 As for the latter, forfeiture of crime proceeds was contingent on a conviction accompanied by the imposition of a principal punishment,Footnote 56 narrowing its scope of application. Moreover, forfeiture of crime proceeds was discretionary rather than mandatory, potentially allowing defendants to retain unlawfully obtained proceeds.Footnote 57
The above features of the traditional form of criminal forfeiture limited its effectiveness and its ability to keep pace with the growing use of legal mechanisms to recover illicit assets. To enhance its criminal forfeiture framework in line with international treaties, such as the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the 2003 United Nations Convention against Transnational Organized Crime, the 2005 United Nations Convention against Corruption, and the 40 Recommendations of the Financial Action Task Force, Taiwan implemented significant reforms in 2016.
The twist
Criminal forfeiture in Taiwan acquired unprecedented reach and force after the implementation of the revised framework in July 2016. The new framework was meant to address the two most heavily criticised aspects of the previous regime: the limited scope of forfeitable crime proceeds and its nature as an ancillary punishment. With regard to the former, forfeiture of criminal proceeds under the new framework is now mandatory rather than discretionary.Footnote 58 In addition, the scope of forfeitable proceeds has been substantially expanded. It now includes criminal proceeds that are converted into other forms,Footnote 59 and criminal proceeds transferred to third parties if that third party acquired them (i) with knowledge of their unlawful origin, (ii) without consideration, or (iii) for grossly inadequate consideration. Forfeiture from a third party also applies when the defendant committed the offence for the benefit of the third party.Footnote 60 Therefore, criminal proceeds − regardless of the form they take, who owns them, or where they were obtained − are all now subject to confiscation, unless they have been lawfully returned to victims.Footnote 61
As for the latter, another crucial change introduced by the 2016 amendments concerns the legal nature of criminal forfeiture. For more than eighty years, criminal forfeiture in Taiwan had been regarded as an ancillary form of punishment, and could be imposed only alongside a conviction and a principal punishment, such as imprisonment or a fine. However, the revised framework redefines criminal forfeiture as an independent and non-punitive instrument of criminal law. Under this model, a new and independent form of criminal forfeiture was introduced that does not necessarily hinge on a conviction or the imposition of a principal punishment.Footnote 62 Instead, the forfeiture of crime proceeds can be ordered and executed independently, even if the defendant has absconded or is deceased, rendering a conviction impossible.Footnote 63 The new mechanism of independent criminal forfeiture draws on the US fugitive disentitlement doctrine, which permits forfeiture to proceed in the absence of the defendant.Footnote 64
Independent criminal forfeiture proceeds against the property rather than against a person and therefore does not require anyone to be criminally charged or convicted first. The procedure is initiated by the prosecutor, who files a petition with the criminal court seeking a declaration of forfeiture of the property in question.Footnote 65 Jurisdiction is determined by the place where the unlawful conduct occurred, where the property is located, or where the owner of the property resides.Footnote 66 In this respect, Taiwan’s independent criminal forfeiture functions similarly to in rem forfeiture in the US,Footnote 67 with the difference that Taiwan’s version remains embedded within the criminal justice process, with forfeiture adjudicated by criminal courts under criminal procedure rules.Footnote 68 This institutional arrangement epitomises the hybrid character of Taiwan’s reformed forfeiture regime, which is examined in greater detail in the following sections.
The stretch
Following the 2016 amendments that restructured the framework of criminal forfeiture, lawmakers further broadened the scope of criminal forfeiture by including, within the category of crime proceeds, unlawful assets of unclear origin, even if those assets are unconnected to the offence with which a person is charged.
The first major development came with the 2017 amendments to the Money Laundering Control Act, which allowed the government to confiscate such unconnected and unclear assets upon a finding, based on the preponderance of the evidence, that they originated from an unlawful source.Footnote 69 This approach was extended in 2020 to drug-related offences, enabling the forfeiture of a defendant’s assets even if they are not connected with the specific drug offence for which the defendant is charged, so long as their unlawful and unclear origin can be established.Footnote 70 Most recently, in 2023, a similar provision was introduced for offences involving sexual exploitation of minors, allowing the confiscation of unlawful assets of unclear origin that are unconnected with the charged offence. In other words, in cases involving sexual exploitation of minors, the defendant’s assets can now be forfeited solely on the basis of their unlawful and unclear origin, regardless of any direct connection with the charged crime.Footnote 71 In summary, for crimes such as money laundering, drug offences, and the sexual exploitation of minors, courts may order the confiscation of proceeds that are not connected with the charged crime, as long as they are found to be of unclear origin and the prosecution has established their unlawfulness under a lower standard of proof, namely the balance of probabilities.Footnote 72 As such, the scope of forfeiture of crime proceeds has been substantially expanded.
Extended forfeiture powers apply to these three categories of offences because they typically generate exceptionally high profits and are often committed repeatedly and in an organised manner.Footnote 73 Moreover, such offences are notoriously difficult to investigate. If such unlawful assets of unclear origin cannot be confiscated, the effectiveness of criminal law would be severely undermined. To deter such activities effectively, the legislature deemed it necessary to broaden the scope of forfeiture for the three categories of offences.Footnote 74 With the introduction of extended forfeiture powers, the regime for the forfeiture of crime proceeds has become considerably stronger. Beyond its traditional role in preventing future crimes, forfeiture now aims, as indicated by the legislative intent behind the 2016 amendments and later stipulations, to restore transactional and economic stability.Footnote 75 This shift suggests that criminal law’s functions have moved beyond their traditional ambit of punishing criminal behaviour, deterring future crimes, and rehabilitating offenders to now include non-punitive ones, such as regulating the economic order.
Follow the money: The private-law logics in criminal forfeiture
Designed as a non-punitive tool for regulating the economic order, the newly introduced criminal forfeiture framework, together with the extended scope of forfeitable crime proceeds under three pieces of legislation, was met with two significant constitutional challenges in the first half of the 2020s. The Constitutional Court, drawing on decisions from the German Federal Court of Justice and the German Federal Constitutional Court, as well as case law from the European Court of Human Rights, defended this new regime by invoking the idea of ‘crime must not pay’ and applying unique private-law reasoning. This section analyses the two Taiwanese judgments to demonstrate how the new criminal forfeiture framework embodies private-law characteristics: it operates as a law of obligations by addressing unjust enrichment and returning criminal gains to victims, and as a form of trade law by governing risk allocation and cost distribution. This asset-based logic applies a follow-the-money approach,Footnote 76 targeting property rather than persons. It also operates not along the axis of relations between the state and private parties, but among private parties themselves. This integration of private-law grammar into criminal forfeiture fundamentally breaks the conventional public-private binary, establishing a criminal disposition uniquely shaped by private-law logics.
Rectifying unjust enrichment
The constitutionality of the new criminal forfeiture regime was reviewed for the first time by the Constitutional Court in 2022. The petitioner challenged its legal classification as an independent, non-punitive measure, arguing instead that it functioned de facto as a form of punishment. On that basis, the petitioner contended that criminal forfeiture should be subject to and constrained by fundamental principles of criminal law, such as the prohibition against ex post facto laws and the doctrine of no crime or punishment without law.Footnote 77 The Constitutional Court, however, upheld the 2016 amendments. It rejected the petitioner’s claims, reaffirming the non-punitive nature of the new criminal forfeiture legislation and concluding that the aforementioned principles of criminal law do not apply.
At its core, the Constitutional Court, citing decisions from the German Federal Court of Justice and the European Court of Human Rights,Footnote 78 determined that the new criminal forfeiture regime embodies the ancient and universally accepted legal principle that ‘crime must not pay’.Footnote 79 This principle is well established and is recognised in the legal frameworks of numerous countries worldwide. It is the bedrock of the new criminal forfeiture legislation in Taiwan.Footnote 80 Therefore, the Constitutional Court replaced the traditional person-based approach to criminal forfeiture with an asset-based one. Drawing on the concept of unjust enrichment found in the Civil Code,Footnote 81 the Court reasoned that the revised framework is designed to strip away all unlawfully obtained gains and to restore the original, lawful property order that existed prior to the commission of the crime.Footnote 82 In essence, the law treats the criminal act as having caused an unjust transfer of property, which must be corrected by confiscating the illicit gains from the defendant or other culpable third parties. Following confiscation, victims and other eligible claimants may seek restitution of the proceeds from the government.Footnote 83 Conversely, if the criminally unjust enrichment has already been reversed, such as when the crime proceeds have been returned to the victim before confiscation, then criminal forfeiture is unnecessary,Footnote 84 as the economic disorder has already been rectified.Footnote 85
The Constitutional Court made this private-law logic even clearer when the new criminal forfeiture legislation was once again brought before the Court in 2024. This time, the question under review was whether the extension of forfeiture to include unconnected, unlawful, and unclear assets of defendants in cases involving money laundering, drug offences, and the sexual exploitation of minors, constituted a form of punishment.Footnote 86 The petitioner argued that, although the legislature characterised the extended scope of forfeitable crime proceeds as a non-punitive measure aimed at restoring the property order, it is de facto a form of punishment, as it deprives the defendant of assets that are unrelated to the charged offence.Footnote 87
Following the reasoning of its previous decision in 2022, the Constitutional Court once again sided with the legislature and dismissed the petition. The Constitutional Court, drawing on decisions from the Federal Court of Justice of Germany,Footnote 88 the German Federal Constitutional Court,Footnote 89 and the European Court of Human Rights,Footnote 90 held that the extended scope of forfeitable crime proceeds is consistent with the reformed criminal forfeiture framework, which aims to establish a mechanism for confiscating criminal proceeds without requiring a conviction.Footnote 91 This mechanism operates by evaluating the impact on the property order, not by determining the defendant's culpability. Its scope is limited to confiscating assets of unlawful origin, ensuring that the defendant’s other assets remain unaffected.Footnote 92 For these reasons, among others, the Court reaffirmed that criminal forfeiture serves as a non-punitive tool to restore a disrupted economic order rather than a form of punishment.
Therefore, the reformed criminal forfeiture regime, together with the extended scope of forfeitable crime proceeds in the three pieces of legislation, is imbued with a unique private-law logic, functioning in a manner akin to the law of obligations by rectifying unjust enrichment and returning the proceeds of crime to victims. In doing so, it aims to achieve criminal restitution and to uphold a lawful economic order.
Distributing transaction costs based on risk
A further notable aspect of private-law logic embedded in the new criminal forfeiture regime was revealed in the reasoning of the two Constitutional Court decisions. The disputed issues were, first, whether the costs incurred by the defendant in committing the offence could be deducted when calculating the amount of crime proceeds subject to forfeiture, and, second, if such costs could not be deducted, whether their confiscation constituted a form of punishment, since these costs are not ‘proceeds of crime’ but part of the defendant’s personal property and thus their deprivation would be identical to a fine.
As to these questions, legal scholars are divided.Footnote 93 One view holds that the purpose of criminal forfeiture is to reduce the financial benefits of a crime to zero, thereby restoring the property order to what it was before the offence was committed. If the forfeiture results in the defendant being left in a worse financial position than before the commission of the crime, it should be regarded as a form of punishment.Footnote 94 The opposing view, however, argues that committing a crime is a voluntary act. The perpetrator already knows that the attempt may fail (resulting in the loss of all ‘investments’, namely the costs incurred in committing the crime) but remains willing to proceed and to bear that loss should the crime fail.Footnote 95 Therefore, it would be illogical to return such costs to the perpetrator if the offence is unsuccessful.Footnote 96
The Constitutional Court addressed this issue, adopting a risk-based view. It rejected the petitioner’s claims by reasoning that the defendant must bear the risk of losing the costs incurred in committing the offence.Footnote 97 This rationale draws on principles of trade law. The Constitutional Court explained that every transaction, whether lawful or unlawful, carries an inherent risk of failure and associated losses.Footnote 98 This risk-based logic applies to criminal conduct as well: if the crime succeeds, the perpetrator may recover the costs through criminal proceeds; if the crime is discovered, it is a foreseeable and reasonable risk that the perpetrator must bear the resulting losses.Footnote 99 Therefore, the law refuses to protect expenses incurred in any illegal transaction, including crimes, making it a natural consequence that offenders must bear the risk of forfeiting their criminal expenses.Footnote 100
The Constitutional Court further distinguished between neutral costs and unlawful costs incurred in the commission of a crime. If the underlying transaction is lawful, but the offender engages in it through unlawful means, for example by using bribery to win a government contract, then the regular expenses related to the bid are considered neutral costs and may be deducted when calculating the forfeitable crime proceeds.Footnote 101 However, the bribes themselves constitute unlawful costs and are not deductible. In contrast, if the transaction is inherently unlawful, such as drug trafficking, the associated costs are classified as unlawful and therefore cannot be deducted.Footnote 102
The Constitutional Court also applied the concept of neutral and unlawful costs to the extended scope of forfeitable crime proceeds.Footnote 103 It explained that if there is evidence that certain costs are unrelated to the underlying criminal conduct or other unlawful purposes, then those costs are considered neutral and may be deducted from the forfeitable crime proceeds.Footnote 104
Consequently, the new criminal forfeiture framework, along with the extended scope of forfeitable crime proceeds under the three pieces of legislation, is imbued with another private-law logic, namely the principles of risk allocation and cost distribution found in trade law. Under this logic, a crime is treated as a form of transaction, and criminal forfeiture functions as a mechanism for allocating the resulting costs once the risk of failure materialises. Therefore, it is not a form of punishment but a non-punitive means of distributing transaction costs based on the principle of risk assumption.
Pragmatic justice: Criminal forfeiture with civil characteristics
Following the analysis of how the reformed criminal forfeiture disrupts the public-private distinction, this section turns to the criminal-civil divide. It argues that, in addition to the shift in focus from persons to assets, the follow-the-money approach also signals a deeper reorientation in the normative grammar of criminal justice: from due process protections towards what this article terms ‘pragmatic justice’. This section first examines the hybrid nature of Taiwan’s new criminal forfeiture framework. While formally structured as a criminal measure, Taiwan’s model exhibits characteristics that are civil in nature and is therefore not constrained by core principles of criminal law. Second, by contrasting Taiwan’s integrated model with the separated model as known from the US, this section shows how Taiwan’s regime adopts a more pragmatic approach to crime control at the cost of due process protections. This pragmatic turn in asset forfeiture can also be found in other jurisdictions, such as Italy, and England and Wales. The analysis highlights both the innovative potential of Taiwan’s hybrid approach to criminal forfeiture and the challenges it poses to the traditional role of criminal law.
Not constrained by core criminal law principles
It is generally assumed that every criminal measure must be constrained by core principles of criminal law, such as the doctrine of no crime or punishment without law, the prohibition against ex post facto laws, the presumption of innocence, and the principle of culpability. However, these principles do not apply to Taiwan’s new criminal forfeiture regime, regardless of whether the forfeiture is conviction-based or not, or whether the forfeitable crime proceeds are connected with the charged offence. Moreover, the independent and extended forms of criminal forfeiture are subject to a lower standard of proof, and the protection against double jeopardy has also been cast into doubt amid conflicting views in the Supreme Court.
With regard to the doctrine of no crime or punishment without law,Footnote 105 the legislature has explicitly stated that the restructured criminal forfeiture is no longer a form of punishment but rather an independent, non-punitive measure. Accordingly, it is not subject to this principle.Footnote 106 As for the prohibition against ex post facto laws, the law specifies that criminal forfeiture is governed by the law in force at the time of adjudication, not the law in effect at the time the offence was committed.Footnote 107 In other words, the new criminal forfeiture legislation can be applied retroactively.Footnote 108 Therefore, offences committed before the 2016 amendments may still be subject to the current criminal forfeiture framework. The Constitutional Court has also confirmed that these two core principles of criminal law do not apply to the new criminal forfeiture regime because of its non-punitive character.Footnote 109
As for the presumption of innocenceFootnote 110 and the principle of culpability, these two core principles of criminal law were invoked when the extended scope of forfeitable crime proceeds was challenged before the Constitutional Court in 2024. As previously discussed, the Constitutional Court sided with the legislature and upheld the legislation, reaffirming the non-punitive nature of the reformed criminal forfeiture. The Constitutional Court reasoned that these principles apply only when the legal measure in question pertains to crime and punishment. Since the current framework for criminal forfeiture functions as a non-punitive mechanism aimed at redressing economic disorder and is not necessarily tied to a conviction, it is not subject to the constraints of these two foundational principles of criminal law.Footnote 111
The reformed criminal forfeiture regime is exempt not only from substantive criminal law principles but also from core procedural safeguards. As discussed earlier, extended criminal forfeiture operates under the civil standard of proof, namely the balance of probabilities, rather than the criminal standard of beyond a reasonable doubt. The same applies to independent criminal forfeiture, which likewise proceeds under a lower evidentiary threshold. Courts may reach a decision on the basis of circumstantial evidence, allowing them to infer that the assets derive from criminal activity without direct proof.Footnote 112
With respect to the relationship between the protection against double jeopardy and the new criminal forfeiture legislation, the Constitutional Court has not yet addressed this issue; however, the Supreme Court is divided on it.Footnote 113 On the one hand, a panel of the Supreme Court held that since the forfeiture of crime proceeds is no longer contingent upon a convictionFootnote 114 and the law permits conviction and forfeiture procedures to be separated, the two are now mutually independent processes. Therefore, under the current legal framework, the protection against double jeopardy does not apply to the new criminal forfeiture mechanism.Footnote 115 In other words, for the same offence, there can be two procedures for conviction and forfeiture. On the other hand, another panel of the Supreme Court referred to the protection against double jeopardy and held that an independent forfeiture proceeding is permissible only when the prior criminal procedure did not result in a conviction. By contrast, if the earlier proceeding did result in a conviction, initiating a separate forfeiture process is impermissible, as it would subject the defendant to double jeopardy.Footnote 116
As a result, the reformed criminal forfeiture presents a paradox: it is formally designated as a criminal measure, remains within criminal law, follows criminal procedures, and is interpreted and applied by criminal courts, but it is not bound by the core principles of criminal law, as it is not criminal in essence; it does not necessarily depend on a conviction and it is not a form of punishment. This raises a crucial question: what does this paradoxical forfeiture regime mean for the modern legal system? This issue will be examined in the ensuing subsection.
Pragmatism over due process protection
Unlike Taiwan, which handles all types of forfeiture, whether conviction-based or not, and whether connected with the charged offence or not, within the criminal justice process despite criminal forfeiture itself being characterised as non-punitive, some jurisdictions separate different types of forfeiture into distinct judicial proceedings. The US, for instance, has established both criminal and civil forfeiture systems, each with its own procedures designed to serve different legal objectives.
Criminal forfeiture in the US is an in personam (against the person) proceeding brought by the prosecution as part of a criminal case against a defendant.Footnote 117 It is a punitive measure imposed as part of the defendant’s sentence following a conviction. Accordingly, criminal forfeiture can be applied only upon a conviction. Conversely, if the defendant is acquitted or the conviction is later vacated on appeal, forfeiture cannot be enforced.Footnote 118 Because criminal forfeiture is conviction-based, its scope is limited to confiscating only the proceeds or property connected with the specific crime for which the defendant has been convicted.Footnote 119 Moreover, as a form of punishment intended to ‘punish wrongdoing, deter future illegality, and “lessen the economic power” of criminal enterprises’,Footnote 120 criminal forfeiture in the US carries many of the same procedural protections afforded to criminal defendants during the forfeiture phase, except the right to a jury trial.Footnote 121
By contrast, civil forfeiture differs from criminal forfeiture in several key respects. As its name suggests, civil forfeiture is an action in rem (against the property) brought through a civil judicial process in which the government is the plaintiff and the property itself, rather than its owner, is the defendant.Footnote 122 Unlike criminal forfeiture, civil forfeiture does not rest on a criminal conviction. However, the government must still demonstrate in court that the property is connected with a specific criminal activity.Footnote 123 In theory, civil forfeiture is not intended to punish the offender but rather to provide a remedy for the harm caused by criminal conduct. Thus, it is considered non-punitive and remedial in nature.Footnote 124 As a result, many of the legal protections that apply in criminal forfeiture do not extend to civil forfeiture proceedings,Footnote 125 including the prohibition against double jeopardy.Footnote 126 Civil forfeiture also has a significant limitation: because it is an action against specific property, it is strictly confined to property that is directly traceable to the alleged offence. In other words, substitute assets or money judgments in criminal forfeiture cases are not permitted in civil forfeiture.Footnote 127
Considering the criminal-civil divide in the US forfeiture system, Taiwan’s new criminal forfeiture framework presents an intriguing departure from this binary model, echoing the recent challenges to the criminal-civil divide in the US forfeiture system. On the one hand, Taiwan’s criminal forfeiture is formally embedded within the criminal justice process; on the other hand, it is non-punitive in nature, does not require a conviction, and is not bound by core principles of criminal law. Therefore, contrary to the criminal-civil divide in the US forfeiture system, Taiwan’s forfeiture regime is instead a criminal-civil combined model. This hybrid approach reflects a convergence of criminal and civil elements in Taiwan’s forfeiture proceedings. For instance, the Supreme Court, in a criminal forfeiture case, cited US in rem forfeiture to support its decision, regardless of the civil nature of the US in rem forfeiture.Footnote 128 Similarly, the US Supreme Court has also recognised the punitive character of some civil forfeiture cases, subjecting them to review under certain constitutional protections, such as the privilege against self-incrimination,Footnote 129 the protection against double jeopardy,Footnote 130 and the prohibition of excessive fines,Footnote 131 which are typically associated with criminal cases.
Taiwan’s hybrid model signals a broader trend towards pragmatism, often at the expense of due process protections, in the domain of asset forfeiture, whether implemented through an integrated or a separated model. Italy offers a notable case of an integrated model administered within the criminal courts but operating with two distinct tracks: a criminal track, which requires a conviction and applies the high standard of proof beyond a reasonable doubt; and a preventive track, which permits the confiscation of assets independent of any criminal trial or conviction, applies lower evidentiary standards, and circumvents the strict due process protections mandated by criminal law. This preventive track is often defended as a ‘necessary evil’ for dismantling the economic power of the mafia, yet its pragmatic orientation remains controversial because it circumvents constitutional guarantees.Footnote 132 In England and Wales, a jurisdiction following a separated model, civil recovery of criminal assets likewise employs what has been described as ‘procedural shortcuts’, such as the ‘balance of probabilities’ evidentiary standard, while bypassing the rigorous due process protections inherent in the criminal justice system. This approach is justified by law enforcement officials as a ‘practical necessity’ for disrupting organised criminal groups, especially high-ranking leaders of such groups.Footnote 133 As a result, these developments reflect a broader shift towards what may be described as a form of ‘pragmatic justice’ within contemporary criminal justice systems.
Taiwan’s hybrid model has further significant implications for the traditional distinction between punishment and regulation, challenging established boundaries within legal theory. The following section will explore this evolving punishment-regulation dichotomy and the shifting role of criminal law in contemporary governance.
Instrumentalising criminal law: Criminal forfeiture’s regulatory role
This section turns to the punishment-regulation divide, the third binary in law, which, like the public-private and criminal-civil distinctions, remains doctrinally contested and difficult to delineate. It makes clear the regulatory nature of Taiwan’s criminal forfeiture legislation, arguing that it exemplifies the instrumentalisation of criminal law to pursue regulatory aims. As used in this article, the instrumentalisation of criminal law refers to the process by which criminal law is repurposed as a vehicle for regulatory governance, formally retaining its criminal character while substantively shedding the constraints that define it as criminal. This section begins by examining the attempts of US courts to establish clear criteria for distinguishing between punishment and regulation. Subsequently, the discussion will turn to the growing trend of punishment-regulation convergence across various jurisdictions. This convergence manifests either through the adoption of punitive measures within civil legal frameworks or the integration of regulatory tools into criminal law. The section concludes by asserting that Taiwan’s restructured criminal forfeiture is a defining instance of such instrumentalisation.
The trend of punishment-regulation convergence
While the US Supreme Court has sought to maintain a clear distinction between punishment and regulation, its approach to defining punishment has been conceptually inconsistent. The US Supreme Court, at times, appears to tailor its definition of punishment to the specific context of certain state actions, such as forfeitures or contempt proceedings, or to the application of particular constitutional protections, like the prohibitions against double jeopardy or excessive fines.Footnote 134 On rare occasions, the US Supreme Court has attempted to articulate a broader, more unified definition of punishment based on a set of considerations that it concedes are ‘neither exhaustive nor dispositive’,Footnote 135 yet it has failed to provide a coherent rationale underlying these considerations, further contributing to the conceptual ambiguity.Footnote 136
Furthermore, it has been observed that the convergence of punishment and regulation is an ongoing and increasingly prominent trend. This convergence manifests in two directions: the adoption of punitive measures within civil legal regimes and the use of regulatory tools within criminal legal frameworks. In the civil context, scholars have noticed that the expansion of punitive civil sanctions has significantly blurred the traditional boundary between punishment and regulation. Professor Kenneth Mann, for instance, has extensively documented how the growth of the administrative state in the US during the 20th century gave rise to a new form of hybrid sanctioning.Footnote 137 This involves the state’s imposition of non-remedial, deterrent sanctions through civil or administrative, rather than criminal, processes.Footnote 138 Moreover, the rise of due process protections in criminal procedure has significantly increased the cost for state and federal governments to pursue criminal prosecutions. In response, legislators and regulators have increasingly turned to civil avenues to address actions that might otherwise be considered criminal behaviour.Footnote 139 Similarly, there is also a growing trend in UK legislation to create civil procedures that blur the lines between regulation and punishment. Examples include civil recovery and anti-social behaviour orders. The primary driver behind this shift is political expediency, that is, the government’s desire to address social problems (like organised crime) more efficiently by bypassing the rigorous protections of criminal law.Footnote 140
In the criminal context, while punitive civil sanctions have become more common, the criminal justice system itself has simultaneously expanded into non-punitive areas traditionally governed by civil law. This expansion is clearly demonstrated by the prevalence of public welfare offences (also known as regulatory offences) in England and Wales and the US.Footnote 141 These are crimes in which strict liability applies to regulatory violations so as to commonly address threats to public health, public safety, public morals, or public order.Footnote 142 They are understood as ‘regulatory’ in nature because they address morally neutral rather than inherently wrongful conduct.Footnote 143 The rise of public welfare offences indicates a growing acceptance that criminal law serves not only a moral, punitive function but also a vital regulatory and administrative role.Footnote 144
In addition to substantive criminal law, procedural criminal means are also increasingly employed for regulatory purposes. For example, courts in the US have made use of preventive detention since the 1980s to detain an arrestee prior to trial if the government could prove that the individual was potentially dangerous to other people in the community. Such detention is deemed regulatory rather than punitive because its purposes are not to punish criminals but to prevent defendants from fleeing and thereby protect the community.Footnote 145 Also, the implementation of anti-terrorism measures within the EU, encompassing travel prohibitions, asset freezes, and area bans, frequently results in substantial limitations on the ordinary lives of affected individuals. While the European Court of Human Rights acknowledges the gravity of these repercussions, its case law does not explicitly characterise these measures as punitive in nature.Footnote 146
This reciprocal evolution in both civil and criminal law reflects a fundamental shift in the nature of state sanctioning and challenges the stability of the punishment-regulation dichotomy. The convergence of punishment and regulation is evident in a US case addressing whether the right to effective assistance of counsel, which is traditionally associated with criminal proceedings, extends to non-citizen deportation cases.Footnote 147 Although immigration removal proceedings have long been classified as regulatory in nature, the US Supreme Court recognised a significant shift in the legal landscape. The US Supreme Court observed that immigration law has become increasingly severe, with more pathways to deportation and fewer forms of relief than in the past. It characterised deportation as a particularly grave consequence, closely intertwined with the criminal justice process.Footnote 148 As a result, the US Supreme Court held that, under the Sixth Amendment, defence counsel is required to advise non-citizen clients about the potential deportation consequences of a conviction in order to satisfy the minimum standard of effective legal representation.
Regulating through criminal forfeiture
As legal scholarship has explained, the rise of the administrative state has ushered in a new kind of hybrid sanctioning. That is, such sanctions combine civil and criminal characteristics, rather than relying solely on a single criminal or civil process.Footnote 149 The development of the administrative agency as a distinctive governmental form, along with the proliferation of punitive civil sanctions imposed by the state, is a crucial attribute of the administrative state.Footnote 150 Taiwan has been identified as an administrative state with a competent bureaucracy.Footnote 151 During the early stages of the COVID-19 pandemic, for example, Taiwan’s swift and effective response to the global health crisis was attributed to its proactive regulatory actions as an administrative state.Footnote 152
With a postwar history of authoritarian control, Taiwan’s government has long employed punitive civil sanctions as a means of maintaining social order and administrative efficiency. Until 1991, for instance, the police in Taiwan were granted punitive powers to directly impose detention, fines, forced labour, and reprimands on citizens who committed minor infractions, bypassing judicial procedures entirely.Footnote 153 This administrative discretion reflected the broader logic of authoritarian governance in which expedience often took precedence over due process. Today, although democratisation has curtailed many of these powers, the police still retain the authority to impose fines and reprimands.Footnote 154 While Martial Law came to an end in the late 1980s and a democratic regime emerged in the early 1990s, Taiwan continued to grapple with the legal boundaries between criminal punishment and civil sanctions. This tension culminated in 2005, when Taiwan enacted comprehensive legislation governing the use of civil sanctions by government agencies, aiming to bring administrative enforcement more in line with the rule of law.Footnote 155
This act narrows the gap between civil sanctions and criminal punishment by aligning several of its principles with those of criminal law.Footnote 156 As a result, in contemporary Taiwan’s legal practice, the distinction between civil sanctions and criminal punishment is widely understood not as a matter of nature but of degree, and criminal punishment is, by design, consistently more severe than civil sanctions.Footnote 157 This conceptual shift has significant implications for the growing convergence between punishment and regulation; that is, civil sanctions that serve punitive purposes and criminal measures that serve regulatory ones. Given Taiwan’s character as an administrative state and its long history of intertwined civil sanctions and criminal punishment, we may thus describe the restructured criminal forfeiture framework as a regulatory turn in Taiwanese criminal law. This transformation reflects broader global trends in which criminal law is increasingly infused with administrative and regulatory functions.
Theoretically, punishment and regulation differ in their targets: punishment focuses on the individual, emphasising retribution or deterrence, while regulation typically aims at the collective, foregrounding systemic correction and risk management.Footnote 158 Taiwan’s criminal forfeiture, however, acts as a hybrid measure. On the one hand, it is a criminal tool in its form, targeting individual offenders and grounded in the criminal justice system. On the other hand, it is substantively labelled as a non-punitive measure, seeking to advance the public good by restoring a disrupted economic order, deterring illicit enrichment, and redistributing unjust gains. Consequently, Taiwan’s criminal forfeiture exemplifies the instrumentalisation of criminal law, remaining criminal in form while regulatory in substance. This phenomenon does not simply mean the use of regulatory statutes to impose punitive sanctions − just as the civil forfeiture regimes in the USFootnote 159 and the civil recovery procedure in England and Wales have been criticised.Footnote 160 Rather, it describes the absorption of regulatory logics into a mechanism that continues to operate within the criminal justice system.
In recognising the regulatory nature of criminal forfeiture and its instrumental approach, we may be witnessing not only the increasing use of criminal law as a regulatory tool in Taiwan but also the gradual decline of the traditional boundary between penal logic and administrative governance. This development calls for renewed attention to how hybrid legal tools function in modern legal systems.
Conclusion
This article has explored the transformation of Taiwan’s criminal forfeiture regime through the analytical framework of three core legal binaries: public-private, criminal-civil, and punishment-regulation. It has traced how, over time, Taiwan’s approach to confiscating crime proceeds has undergone three significant shifts: from limited to broad in its scope, from punitive to non-punitive in its purpose, and from an ancillary punishment to an independent legal measure in its role. These shifts have redefined the legal character of criminal forfeiture and repositioned it as a mechanism grounded in the aim of redressing economic disorder instead of sanctioning criminal activities.
By examining recent constitutional judgments, the article demonstrates how Taiwan’s criminal forfeiture regime has changed its target from persons to property and now embodies private-law features, particularly in applying the follow-the-money approach and in addressing unjust enrichment and regulating the allocation of risks and costs, thereby blurring the public-private divide. In addition, Taiwan’s hybrid model further challenges the traditional criminal-civil dichotomy by adopting civil characteristics within a criminal framework. It signals a pragmatic approach to crime control at the cost of due process protections, which can also be found in other jurisdictions. Finally, the article’s analysis of the punishment-regulation binary reveals how Taiwan’s criminal forfeiture regime exemplifies the integration of a regulatory logic into the criminal justice system and the instrumentalisation of criminal law, a hallmark of the evolution of Taiwan as a modern administrative state.
This article thus makes an epistemological contribution to modern legal theory and draws attention to emerging legal challenges. On the one hand, these findings suggest that Taiwan’s reformed criminal forfeiture regime not only disrupts entrenched legal distinctions but also represents a broader paradigm shift towards integrated, hybrid legal mechanisms. In doing so, this article offers a compelling example of how modern administrative states are adapting legal tools to address complex socio-economic problems, thereby making a theoretical contribution to contemporary legal theory. As scholars have raised concerns about inadequate human rights protection in the punitive turn of civil sanctions,Footnote 161 Taiwan’s reformed criminal forfeiture regime likewise poses serious threats to defendants’ rights by abandoning core principles of criminal law. Therefore, how best to strike a balance between enhancing the efficiency of criminal forfeiture and safeguarding human rights remains an important subject for future inquiry.
Open access
