Abstract
The legislative explanation of Art. 40 Para. 3 mentions that the court can independently order that the object be confiscated even if the judgment of the case becomes final. According to this explanation, one judgment of the supreme court considers that the court can independently order that the object be confiscated after a verdict becomes final. This article argues that the subsequent confiscation must be in conformity with the constitutional principle of ne bis in idem. It examines the constitutionality of three kinds of subsequent confiscation, including subsequent independent confiscation (Art. 40 Para. 3 of Taiwanese Criminal Code and Art. 76a of German Criminal Code), subsequent order for confiscation of equivalent sum of money (Art. 76 of German Criminal Code) and separation of confiscation proceedings and confiscation following separation (Art. 422 and 423 of German Code of Criminal Procedure). The latter two systems conform with the principle of ne bis in idem and could be used as a reference for amending our criminal law. As for the subsequent independent confiscation, in order to comply with constitutional requirements, an additional condition similar to Art. 76a para. 1 sentence 3 of the German Criminal Code has to be amended: “Confiscation is not ordered, if a decision concerning said confiscation has already been taken and become final.” As for the question, whether the reparation regulations of Financial Eight Laws allow the subsequent confiscation? The answer is no. The only possible way is to introduce the German system: separation of confiscation proceedings and confiscation following separation (Art. 422 and 423 of German Code of Criminal Procedure).