Research On Special Confiscation In The Cross Vision Of Criminal And Civilian

Special confiscation is the theoretical title of the system of handling criminal articlesstipulated in article 64 of the Criminal Law of our country.It is a kind of criminal entity punishment measure which is taken by the state without compensation except for the person who has the legitimate right to return the property acquired by the crime and the property used for or born in the crime,which is taken away by cutting off the economic motive of inducing the crime and preventing the factors promoting the crime.Although special confiscation is a criminal punishment measure based on the purpose of criminal law,the intervention of public power on property rights can not be separated from the constitutional protection of property rights and the specific setting of property rights in civil law.In addition,because of the special confiscation is different from punishment,security sanctions and other disciplinary measures against the person to punish the property Sub-measures,special confiscation of the relevant criminal law norms as "secondary law" and civil law and other "primary law" norms of the relationship is different from the theory of crime and illegal behavior progressive relationship,especially after the object of confiscation into the perspective of criminal law,the relevant criminal law norms can not completely replace the adjustment of civil law and other one-off law norms.At present,the judicial operation of special confiscation presents a lot of chaos of the separation and conflict of the criminal people,which seriously deviates from the value orientation of the modern legal system to guarantee the property right and the dual concern and demand of the people to fight crime and protect the property right.Out of the barrier of "criminal law ",to clarify the cross-legal relationship between criminal and civil involved in special confiscation To find out the influence of civil law relation on special confiscation,to draw the rules of dealing with implicating and competing between them and to realize the unification of criminal law order is an urgent problem to be solved in the study of special confiscation theory.On the one hand,it is helpful to change the tradition of emphasizing person and neglecting property,enhance the cognition of property right and realize the unification of criminal law order.On the other hand,it is helpful to expand the vision and space of criminal law theory research,make the problems in special confiscation practice get complete solution through "panorama ",and provide theoretical support for judicial operation and legislative perfection.Therefore,from the penalty The study of theangle of view of the people is especially confiscated,which has both theoretical significance and practical value.This paper shows the practical dilemma of special confiscation through empirical investigation,finds out the crux of the problem,and constructs the special confiscation entity rule under the unity of criminal civil law order through legal analysis and exploring the solution path.In addition to the introduction and conclusion,the text is divided into the following five chapters:The first chapter is the special confiscation and the cross attribute of the criminal.This paper explains the scope and perspective of this study through the overview of special confiscation and the interpretation of its cross-attributes.It is pointed out that the attribute of the intersection of special confiscation penalty is rooted in the dual adjustment of the object of special confiscation(except contraband)by the criminal law and the civil law,because the same object causes the intersection of the vertical special confiscation criminal legal relationship with the horizontal equal subject.From the point of view of the intersection of legal facts,when the criminal facts are tort facts at the same time,it leads to the competition between the special confiscation and the civil tort legal relationship;if there is the original third party real right on the object of confiscation After the event,the proceeds of crime,the origin of or used in the crime may be transferred,and the fact of special confiscation may be implicated in the civil legal fact of the circulation of the property;when the execution of the special confiscation decision is fulfilled,the special confiscation and the civil claim may be subject to the same subject matter as the execution of the competition.In this regard,from the legal facts,legal relations,legal consequences(liability)three levels to show the special confiscation of the cross-attribute of the external performance.Chapter Ⅱ deals with the practical difficulties of special confiscation.Through the empirical investigation,from the perspective of the intersection of torture and the people to show the outstanding problems of special confiscation in judicial practice."Confiscation of what,how to confiscate" is the most central content of special confiscation,the current special confiscation of the scope of the object and of confusion: first,the mode and scope of confiscation and property form value mismatch,did not form a specific property form applicable to the confiscation or value confiscation rules,intangible property and value-added income confiscation scope confusion;second,criminal proceeds confiscation beyond thescope of "property ",sliding to " enterprise confiscation " tendency;third,in the common.In the crime,there are two extremes which equate the confiscation of the proceeds of crime with joint tort and joint compensation and ignore the right of the victim to return the property,showing the judicial arbitrariness of the share of the confiscation responsibility between the accomplices.In addition,special confiscation in the specific operation has not properly handled the relationship with the legal property rights,showing a clear separation and conflict between the criminal people: first,within the system of handling criminal articles,the relationship between special confiscation and the right to request the return of the victim’s property has not been clarified: the confiscation of criminal instruments takes precedence over the return of the victim’s property,the judgment of whether the proceeds of crime are confiscated and handed over to the State Treasury or returned to the victim is unclear,and the criminal return and the return of civil judgment are related.The second is to deal with the relationship between special confiscation and the third party’s real right: the scope of the confiscation object is affected by the original property right,the disposal imbalance of the new biological right on the confiscation object,especially the conflict between the special confiscation and the bona fide successor’s property right;third,in the relationship between the special confiscation and the third party’s creditor’s rights,it shows that the order to withdraw compensation takes precedence over the civil creditor’s rights,the civil execution refuses or gives way to the special confiscation.Chapter Ⅲis the legal basis for special confiscation.Based on the unified thinking of legal order,starting with the normative purpose and essence of special confiscation,this paper analyzes the legal nature of special confiscation,accurately displays the basic theory of special confiscation system,and lays the foundation for the improvement of the approach and the construction of entity rules in the following text.Special confiscation by excluding the illegal distribution of property,interference in the illegal use of property,to restore the order of property law as the direct purpose;to block the economic incentives of crime,blocking the promotion of crime to achieve the basic purpose of resisting crime.Because of the different nature of the source of law,the special confiscation is divided into the confiscation of the proceeds of crime and the confiscation of the criminal object,the essence of the former is the quasi-inappropriate income of criminal law balance measures,the essence of which is the public power intervention to abuse property rights.On this basis,it is pointed out that thelegal nature of special confiscation is an independent measure of punishment of criminal entities: it is different from the punishment based on criminal responsibility,security sanctions and other sanctions against people,things in the crime,combined with the sanctions against the crime;it is different from the administrative and civil measures,and civil improper enrichment,civil recovery and administrative law related measures to coordinate the function of property order reconstruction;it can achieve the effect of enforced deprivation of the illegal things in the crime,and has the effect of incidental realization of the victim’s property right recovery.Chapter four is the perfect route for special confiscation.From the macro-level concept,principle to meso-level special confiscation object attribute interpretation,normative logic straightening out,give the current special confiscation perfect approach.In the concept,the understanding of special confiscation should change from the punishment of people to the punishment of things,from the separation of the criminal people to the link of the criminal people,and adhere to the concept of "the country does not compete with the people for profit" in the conflict of the criminal people.In the guiding principles,the principle of differentiation between the confiscation of proceeds of crime and the confiscation of criminal objects is proposed: the confiscation of proceeds of crime realizes the total deprivation of the benefit of the property acquired by the crime,and the confiscation of criminal objects should meet the principle of proportionality of public power intervention.Confiscation was more than necessary;the principle of the inviolability of legitimate property rights and the balance of judicial benefits was put forward in general: as a means of combating crime,special confiscation needed to strike a balance between intervention and protection,without prejudice to the property rights of innocent persons,while also taking into account judicial benefits,in order to avoid the negative economic consequences of the restoration of property law.Through the comprehensive interpretation of the property of the object of special confiscation,it is clear that its essential characteristics: the criminal property of something is closely related to the fact of crime in the sense of violation,which determines that it should be deprived;its civil attribute is the original property or illegal property attribute after stripping the criminal attribute,The form of the object and the legal relationship of the property right affect the subject matter and the way of the final confiscation.Because anti-criminal law is the basis of special confiscation in the criminal law,its standard setting must be based on the effect ofanti-criminal law,whether the confiscation is determined by the criminal attribute of the object;at the same time,based on the direct purpose of special confiscation to restore the property law order,the specific confiscation needs to be restricted by the property law norms of the first law,in order to adhere to the status of the criminal law security law,to ensure the unity of the criminal law order.Chapter Ⅴ covers the development of special confiscation rules.This section,from the scope of the object of special confiscation,the way of confiscation to the treatment of the legal relationship between special confiscation and the property of victims and third parties,makes the core entity rules of special confiscation clear.First of all,we should grasp the criminal nature of the object of confiscation,compare the scope of improper return of profits,and discuss the contraband separately.On the basis of the basic types of proceeds and objects of crime,we should discuss one by one the controversial points in theory and the difficult points in practice.Second,targeted The different states apply to the confiscation of specific objects and the confiscation of value,because there is a qualitative difference between the confiscation of value and the confiscation of specific objects between the debt of the State to obtain specific goods and money,and the confiscation measures should be distinguished so as to facilitate the convergence of the executed prisoners.It is recommended that recovery and restitution be defined as procedural measures and that recovery be introduced so that confiscation and recovery correspond to the confiscation of specific objects and the confiscation of value,respectively.In addition,the confiscation in the joint crime has the particularity of how to deal with the internal relationship of the accomplice.Based on the balance between accurate confiscation and effective confiscation,and with the thinking of similar property sharing,a specific scheme is put forward,which is supplemented by independent confiscation and joint confiscation.Again,clarify The relationship between confiscation and the victim’s right of return of property,criminal return and civil return has a qualitative difference,but the victim’s return is based on the civil right of request for return of property;the standard of whether the victim should return the property is whether the victim has not lost the right of request for return of property,and the victim who accepts the return must be the actual victim of the property.In order to ensure the effective operation of the special confiscation system,we should straighten out the ownership relationship of the object of confiscation,take the existing property right system of civil law as the basis,protect thelegal property right and adjust the confiscation mode accordingly.Finally,the implementation of the issue of civil competition into the study to deepen the special The understanding of the nature of confiscation,straighten out the relationship between the third party’s creditor’s rights and special confiscation,and give the rules for dealing with the conflict between public and private rights.Through the study of the cross-view of special confiscation,it is found that special confiscation has the endogenous nature of the cross-over,grasps its normative purpose of restoring property law order,resisting crime and its property-based character,and adheres to the status of the guarantee law of criminal law and the unification of law order,which will maximize the function of special confiscation in combating crime and protecting human rights.