Instrumentalising Criminal Law: Forfeiture Reform and the Blurring of Legal Binaries in Taiwan

Abstract

This article analyses the transformation of Taiwan’s criminal forfeiture regime through three legal binaries: public-private, criminal-civil, and punishment-regulation. It argues that the Taiwanese regime has expanded in scope and introduced mechanisms for non-conviction-based and extended forfeiture. In doing so, it has fundamentally re-characterised criminal forfeiture as a non-punitive, asset-oriented tool aimed at addressing economic disorder rather than punishing crime. The article first shows how Taiwan’s Constitutional Court affirmed the regime’s private-law orientation, emphasising unjust enrichment and the allocation of risks and costs, thereby shifting the focus from persons to property and blurring the public-private divide. Second, unlike the US system, which separates civil and criminal forfeiture, Taiwan’s hybrid model integrates civil-like elements within a criminal framework, prioritising pragmatic crime control over due process safeguards and challenging the conventional criminal-civil distinction. Third, the punishment-regulation analysis reveals how regulatory objectives have been absorbed into the criminal justice system, reflecting the instrumentalisation of criminal law and the evolution of the modern administrative state. Taiwan’s experience thus exemplifies a broader global shift towards hybrid legal mechanisms that transcend conventional legal categories, offering important comparative insights into how modern states repurpose criminal law to manage complex socio-economic risks.