謙聖國際法律事務所

1. What Happened in the Taoyuan District Court Fraud and Money Laundering Cases?

The Taoyuan District Court cases involved a defendant accused of participating in an alleged fraud organization as an in-person courier responsible for collecting cash from victims.

The cases are significant because the court did not simply focus on the total amount of money that passed through the defendant’s hands. Instead, it examined how much money the defendant actually retained and whether he continued to own or control the remaining funds.

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1.1 The Defendant’s Role as an In-Person Courier

The defendant was accused of joining a criminal organization that allegedly used fraudulent investment schemes.His alleged role was that of an “in-person courier,” meaning that he directly met victims, collected cash, and then transferred the money to other individuals in the organization.

Couriers typically operate at the lower levels of alleged fraud organizations. Although they may physically receive large amounts of money, they may have limited involvement in the overall operation and may not retain control over most of the funds after collection.

➠This distinction became central to the court’s confiscation analysis.

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1.2 The Two Alleged Fraud Transactions

The defendant was accused of participating in two separate fraud and money laundering incidents.

In the first case, Victim A was allegedly deceived into believing that investing in the equity of an unlisted company could produce profits. Following instructions from other members of the alleged organization, the defendant collected NT$2.12 million in cash from Victim A in Taoyuan City and then transferred most of the money to others.

In the second case, Victim B was allegedly persuaded to invest in gold futures. The defendant collected NT$700,000 from Victim B at a 7-Eleven convenience store and again transferred the funds to other members of the alleged organization.

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1.3 The Court’s Sentence and Confiscation Decision

The court found the defendant guilty and imposed a sentence of three years and two months of imprisonment.However, the confiscation ruling was more limited.

The court ordered clawback only for the personal criminal proceeds actually obtained and retained by the defendant. It did not order the defendant to repay or forfeit all of the funds that he had already transferred to others.

➠This distinction is the central legal issue addressed in the judgments.

 

2. What Is Asset Forfeiture or Confiscation Under Taiwan Criminal Law?

Before examining the court’s reasoning, it is important to understand what confiscation means in Taiwan criminal law.

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2.1 The Purpose of Criminal Confiscation

Confiscation is a criminal law mechanism that allows the State, when legal requirements are satisfied, to take ownership of certain property connected with criminal conduct.

Its primary purpose is to deprive offenders of unlawful benefits obtained through criminal activity and to prevent criminal proceeds from remaining available for continued use.

💡Confiscation is therefore focused on removing illegally obtained benefits rather than simply imposing an additional monetary punishment.

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2.2 Criminal Proceeds and Instruments of Crime

Under Articles 38 and 38-1 of Taiwan’s Criminal Code, property subject to confiscation may include criminal proceeds as well as certain objects used in or produced through criminal conduct.

Criminal proceeds may include money or other assets obtained directly or indirectly through criminal activity, such as funds acquired through fraud.

Other property may include items used to commit an offense or produced through criminal conduct, such as forged documents or other tools used in a fraudulent scheme.

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2.3 The Difference Between Confiscation and Clawback

Confiscation and clawback are related but different concepts.

Confiscation generally refers to taking property that still exists and can be identified or seized.Clawback, or collection of equivalent value, may be ordered when the original criminal proceeds have been destroyed, lost, commingled, transferred, or otherwise cannot be directly confiscated.

➠In such circumstances, the court may order payment of an amount equivalent to the value of the criminal proceeds where the legal requirements are met.

 

3. Who Should Be Subject to Confiscation?

One of the most important questions raised by the Taoyuan District Court was simple but fundamental: against whom should confiscation actually be ordered?

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3.1 Ownership and De Facto Power of Disposal

The court emphasized that the key issue is who owns or exercises de facto power of disposal over the property that is potentially subject to confiscation.

Under Article 38-3, Paragraphs 1 and 2 of Taiwan’s Criminal Code, the court should identify the person or entity that holds ownership or actual power of disposal over the property at the time of adjudication.

➠This matters because confiscation transfers property rights to the State. If the person against whom confiscation is ordered no longer owns or controls the property, ordering confiscation against that individual may not properly reflect the legal structure of the confiscation system.

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3.2 Why Being a Defendant Is Not Enough

The judgments reject the idea that confiscation should automatically be imposed on a defendant simply because the defendant once handled criminal proceeds.Instead, the court must first determine whether the defendant still owns, possesses, or exercises actual control over the relevant property.

If the defendant no longer owns or controls the proceeds, the court should not automatically impose confiscation and then attempt to reduce the burden through later adjustments.

➠The proper analysis begins with ownership and control.

 

4. How Should Criminal Proceeds Be Handled Among Multiple Co-Offenders?

Fraud and money laundering cases often involve several alleged participants, including organizers, recruiters, couriers, account holders, money handlers, and other intermediaries.

The Taoyuan District Court emphasized that confiscation must reflect each person’s actual relationship to the criminal proceeds.

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4.1 Separate Confiscation Based on Actual Proceeds

Where the distribution of criminal proceeds among multiple co-offenders can be clearly identified, confiscation should generally be determined separately.

For example, if one participant actually retains NT$500,000 and another receives NT$100,000, the court should examine confiscation based on the amount actually owned or controlled by each individual.

The fact that several defendants participated in the same offense does not automatically mean that each person should be responsible for confiscation of the entire amount.

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4.2 When Joint Confiscation May Apply

Joint confiscation may be appropriate where several participants jointly own or jointly exercise de facto control over criminal proceeds and their respective shares cannot be clearly separated.

However, if another co-offender does not share ownership or joint power of disposal over those proceeds, joint confiscation should not automatically be extended to that person.

💡The decisive issue remains the actual ownership and control structure of the property.

 

5. Why Are These Rulings Important for Fraud Couriers?

The most practically significant aspect of the Taoyuan District Court judgments concerns fraud couriers who receive money from victims and then quickly transfer it to others.

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5.1 Money Already Transferred Upstream

In many fraud cases, a courier may physically receive a very large amount of money but retain only a small commission.The remainder may be transferred immediately to another member of the alleged organization.

The court held that once the courier has transferred the funds and no longer possesses ownership or de facto power of disposal, confiscation or clawback should not automatically be imposed on the courier for the entire amount.

➠Instead, the court should determine who actually owns or controls the proceeds.

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5.2 Why Courts Should Not Automatically Order Full Clawback

Past judicial practice sometimes imposed clawback against couriers for money already transferred to others, and then relied on mechanisms intended to reduce excessive hardship.The Taoyuan District Court rejected that analytical sequence.

According to the court, if the defendant no longer owns or controls the money, the first question should be whether confiscation or clawback against that defendant is legally appropriate at all.

In other words, courts should not first impose liability for the entire amount and only later consider reducing the burden.They should first identify the proper subject of confiscation.

 

6. What Is the Correct Court Review Process for Confiscation?

The judgments provide a structured four-step framework for reviewing confiscation.

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6.1 Identify the Property

The court should first identify the specific property potentially subject to confiscation.This may include criminal proceeds, property obtained through an offense, or certain objects connected with the crime.

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6.2 Identify the Owner or Controller

The court must then determine who owns the property or who exercises de facto power of disposal over it at the relevant time.Evidence concerning possession, transfers, bank records, cash flows, communications, and actual control may become important at this stage.

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6.3 Determine Whether Legal Requirements Are Satisfied

Once the owner or controller has been identified, the court must determine whether the statutory requirements for confiscation are satisfied.

⚠️The fact that property is connected to a criminal offense does not eliminate the need to analyze the statutory basis for confiscating it from a particular person.

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6.4 Decide Whether Individual or Joint Confiscation Applies

Finally, the court must determine whether confiscation should be ordered individually or jointly.

Where ownership and control are clearly divided, individual confiscation may be appropriate.Where several co-offenders jointly own or control the same proceeds and their shares cannot be distinguished, joint confiscation may be considered.

 

7. How Did the Taoyuan District Court Apply These Rules in the Present Cases?

The practical importance of the judgments can be seen in how the court treated the defendant’s personal proceeds in the two fraud incidents.

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7.1 NT$2.12 Million Collected from Victim A

In the first case, the defendant collected NT$2.12 million from Victim A.

However, according to the case record, the defendant stated that he personally received only NT$3,000, while the remaining funds were transferred to others.The court treated the NT$3,000 as the defendant’s personal criminal proceeds.

Because the NT$3,000 had not been seized and could no longer be identified as specific property due to the possibility of commingling, the court ordered clawback of an equivalent value of NT$3,000.

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7.2 NT$700,000 Collected from Victim B

In the second case, the defendant collected NT$700,000 and personally received NT$4,000.However, the defendant later paid NT$4,000 to Victim B as part of a mediation settlement.

Because this amount had already been actually and legally returned to the victim, the court determined that there was no remaining amount requiring confiscation or clawback.

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7.3 Why the Remaining Funds Were Not Clawed Back from the Defendant

The court did not order confiscation or clawback against the defendant for the remaining money that had already been transferred to others.

There were several reasons.

• First, the defendant no longer owned or exercised de facto power of disposal over the transferred funds.
• Second, the identities of the persons currently owning or controlling the funds could not be clearly established.
• Third, because the funds had not been seized and their subsequent location was unknown, the court could not determine their present ownership or status.

➠For these reasons, the court concluded that the defendant should not be ordered to pay an equivalent value for funds that he no longer owned or controlled.

 

8. What Is the Practical Significance of These Decisions?

These rulings provide several important lessons for future fraud and money laundering cases involving confiscation.

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8.1 Fairness in Confiscation

The judgments reinforce the principle that confiscation should correspond to actual ownership and control.

This helps prevent a defendant from being required to forfeit money that has already been transferred away and over which the defendant no longer has any actual power of disposal.

For defendants accused of acting only as low-level couriers, this distinction can be particularly important.

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8.2 Greater Predictability for Defendants

A structured confiscation analysis also makes court decisions more predictable.

Instead of assuming that every person involved in a criminal transaction is responsible for the full amount, defendants and defense lawyers can focus on specific questions:

• Who actually received the proceeds?
• Who retained them?
• Who controlled them at the relevant time?
• Were the funds transferred?
• Can the current owner or controller be identified?

These questions create a clearer framework for both prosecution and defense.

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8.3 Importance of Evidence Showing Ownership or Control

Because ownership and power of disposal are central issues, evidence becomes extremely important.

Relevant materials may include bank account records, transfer receipts, withdrawal records, cash delivery records, communication logs, witness statements, and other evidence showing whether the defendant retained or transferred criminal proceeds.

A defendant who can demonstrate that funds were immediately transferred to another person may be in a significantly different legal position from a defendant who personally retained and controlled those proceeds.

 

9. How Can a Defense Lawyer Assist in a Fraud or Money Laundering Confiscation Case?

Confiscation issues in fraud and money laundering cases can significantly affect a defendant’s financial liability in addition to the criminal sentence.A defense lawyer can first examine whether the prosecution has correctly identified the criminal proceeds and the person who actually owns or controls them.

The lawyer may also review bank transactions, cash transfers, communication records, settlement payments, and other evidence to determine whether the defendant retained any personal criminal benefit.

Where the defendant acted as a courier, the defense may focus on distinguishing between the total amount temporarily handled and the amount actually retained as personal proceeds.Legal arguments may also address whether confiscation should be individual or joint, whether the defendant had lost ownership or control, and whether amounts already legally returned to victims should still be subject to confiscation.

 

10. Frequently Asked Questions About Asset Forfeiture in Taiwan Fraud Cases

Not automatically.

The court should first determine whether the courier actually owns or controls the money. If most of the funds were immediately transferred to others and the courier retained only a small amount, the confiscation analysis should distinguish between the total amount handled and the proceeds actually owned or controlled by the courier.

Confiscation generally applies when the specific property still exists and can be identified or seized.

Clawback or collection of equivalent value may apply when the original criminal proceeds can no longer be directly confiscated, such as where they have been lost, transferred, destroyed, or commingled.

No.Where the proceeds received or controlled by each co-offender can be identified separately, confiscation should generally correspond to each person’s actual ownership or power of disposal.

Joint confiscation may become relevant only where multiple persons jointly own or control the proceeds and their respective shares cannot be separated.

According to the analytical approach in these Taoyuan District Court rulings, the court should examine whether the courier still owns or controls the funds.

If the courier has lost ownership and de facto power of disposal, the court should not automatically order confiscation or equivalent-value clawback against the courier for the full transferred amount.

Yes.If the courier personally received a commission or other benefit from the criminal conduct, that amount may constitute personal criminal proceeds and may be subject to confiscation or clawback.

Amounts that have already been actually and legally returned to the victim may affect whether there are remaining criminal proceeds requiring confiscation or clawback.

In the second case discussed in these judgments, the defendant’s NT$4,000 personal proceeds had already been paid to the victim through mediation, and the court did not order further confiscation or clawback of that amount.

A person may not formally own property but may still exercise actual control over it.

For confiscation purposes, courts therefore examine not only formal ownership but also whether the person has actual power to possess, transfer, use, or dispose of the property.

Bank records, transfer receipts, withdrawal records, cash handover evidence, communication records, settlement documents, and witness testimony may all help establish who actually owned or controlled the proceeds.

A defendant may raise legal and factual arguments concerning ownership, control, the amount of personal criminal proceeds, whether property has been transferred, and whether amounts have already been legally returned.

Because confiscation can involve complex legal analysis, the specific judgment and evidence should be reviewed by a criminal defense lawyer.

Their central contribution is a clearer analytical framework: courts should first identify the property and determine who actually owns or controls it before deciding whether confiscation or clawback should be imposed.

This is particularly important in fraud courier cases, where the amount physically handled by a defendant may be far greater than the amount personally retained.

 

11. Conclusion: Confiscation Should Follow Actual Ownership and Control

The Taoyuan District Court criminal judgments No. 114-Jin-Su-Zi-1333 and No. 1350 provide an important framework for analyzing asset confiscation in Taiwan fraud and money laundering cases.

The central principle is that confiscation should not automatically follow the person named as a defendant. Instead, courts should identify who actually owns or exercises de facto power of disposal over the criminal proceeds.This distinction is particularly important in cases involving in-person couriers.

A courier may physically receive millions of New Taiwan dollars from a victim but retain only a small commission before transferring the remainder to others. Under the reasoning of these judgments, the fact that the courier once handled the money does not necessarily mean that the courier should face confiscation or clawback for the entire amount.

Courts should first identify the property, determine who owns or controls it, verify whether the legal conditions for confiscation are satisfied, and then decide whether individual or joint confiscation is appropriate.

For defendants facing fraud, money laundering, or criminal proceeds confiscation issues in Taiwan, evidence concerning actual ownership, transfers, personal commissions, settlement payments, and control over funds may significantly affect the final outcome. 

 

 🧑🏻‍⚖️Chien Sheng International Law Firm provides legal consultation and criminal defense services for fraud, money laundering, asset confiscation, criminal proceeds, and related criminal cases in Taiwan. Early analysis of the flow of funds and ownership structure can help defendants understand their legal position and prepare a more focused defense strategy.

 

 

Disclaimer: This article provides general legal information regarding Huo Ma Ren, cannabis seeds, and Taiwan’s narcotics laws. It does not constitute legal advice for any specific case. The applicable criminal liability must be determined based on the characteristics of the substance, germination activity, intent, conduct, scientific examination results, and the laws and judicial interpretations applicable to the individual case.

 

 

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