Study On Confiscation Of Property Involved In Criminal Cases

In the theory of criminal law,in order to be distinguished from the punishment of confiscation of property as a penalty,the confiscation of criminal property involved is usually called "criminal special confiscation".In Germany,the reform act of property deprivation in criminal law revised in 2017 reconstructed criminal property confiscation system.In Chinese Taiwan,the new confiscation system implemented in 2016 recreated confiscation system in criminal law.In the countries of common law,civil and criminal confiscation system has been a matter of great concern in recent years,which,overall,presents a trend of expansion and applicability.On the contrary,there are still many deficiencies in the confiscation system of property involved in China.Article 64 of the Criminal Law of China is a general provision of the confiscation and other punishment methods of the property involved in criminal cases,and its content is too rough,lack of operational specific rules,unable to give full guidance to judicial practice,leading to the difficult identification,differentiation and confiscation of the property involved.The confiscation of property involved in criminal cases has become one of the most severe and complex problems in the field of criminal justice in China,and it has very important theoretical value and practical significance.Property involved in criminal cases refers to the substantive punishments,directly related to the illegal act and the case,confiscated or returned by the judicial organs,such as criminal income,contraband and property used for the crime.In essence,the legal nature of the confiscation of property involved in criminal cases needs to be individually defined by the types of property.For example,the confiscation of contraband has the nature of security measures,while the confiscation of criminal income has the dual nature of punishment and security measures.This distinction is very ideal.However,typological thinking is needed in the criminal sanction system.It is unnecessary to define the legal nature of the property involved in the confiscation on the basis of a wide variety of property categories,and it is bound to cause the disorder of the criminal sanction system.According to the perspective of typological thinking,if the legal nature of criminal property confiscation is defined as independent legal effect,the criminal sanctions system will be more complete.It’s easier to judge and confiscate the property involved separately when the perpetrator is unable to be held criminally responsible due to factual or legal reasons.Meanwhile,getting rid of the theoretical obstacles to the confiscation of property related to the third party can also provide a legal basis for the separate declaration of confiscation system.The confiscation of property involved in criminal cases is a substantive deprivation of the property rights and interests of the doer.However,in the Criminal Law of China,there is only one legal provision,which fails to give full play to its function.In order to make up for this deficiency,China’s Criminal Procedure Law and relevant judicial interpretations have also added some substantive rules,but it still can not meet the needs of judicial practice.In practice,the main text of the confiscation of property involved in the case is vague,and a lot of issues are still prominent,such as replacing property confiscation with the penalty of property confiscation,attachment of confiscation and preservation of property involved in the cases to evidence preservation,the idling of the trial procedure,and the ineffective protection of the property rights of the third party.The reasons for these problems,are mainly the serious deficiency of the entity norms of the criminal property confiscation and the absence of the procedural guarantee mechanism in China,in addition to the complexity of the form and ownership relationship of the property involved in the cases.The effective solution to the dilemma of property confiscation involved in criminal cases is to learn from the experience of extra-territorial legislation,from the perspective of criminal integration,mainly based on the criminal substantive law,combine with the criminal procedure law,and carry out the local transformation and improvement according to the actual situation of China.From the perspective of substantive rules,in the identification standard of criminal income,there should be a direct correlation between the income of crime and the illegal behavior,which should not be based on the premise that the doer has the criminal responsibility,and the perpetrator should have the actual right to dispose of the income of crime.In the calculation of criminal income,we can learn from the relative total principle of Germany and Taiwan region,and deduct the neutral cost not contaminated with illegal.For the time node of the calculation of the amount of criminal income,the judgment is more reasonable,and the value of the original object and the derived benefits can be fully confiscated.For the joint and several liability for the confiscation of criminal income in the joint crime,the restricted joint theory can easily slide to the joint liability theory in the actual operation,and it is relatively more reasonable to use the restricted average distribution theory.When the amount of individual distribution cannot be determined,the amount of confiscation is distributed equally.The confiscation of the criminal proceeds of a third party shall meet the corresponding preconditions,related conditions and exclusion conditions before the confiscation is made.When identifying property used for criminal purposes,the main focus is on the correlation between property and crime.It is necessary to consider factors such as the magnitude of the impact of property on crime and the degree of closeness of connections,to make specific judgments from both objective and subjective perspectives.At the same time,it must be measured by the proportional principle to filter out unnecessary confiscation.In order to prevent the perpetrator from transferring the property that should be confiscated for the crime to the third party,or to prevent the third party from improperly providing it in a difficult way,and producing the legal effect of exemption from confiscation,even if the property belongs to the third party,it shall be confiscated.Confiscation of equivalent property,confiscation of constructive criminal income,and separate declaration of confiscation not based on conviction are the special types of confiscation when confiscation cannot be confiscated or confiscation is difficult,and the rules of essence should be improved in combination with its particularity.The realization of substantive law rules depends on the perfection of procedural rules,and strict procedural norms are required from the pre-trial preservation of the confiscation of the property involved to the trial procedure.China’s "criminal procedure law" only defined the compulsory measures of property as evidence preservation measures.It did not give its enough attention on the specification for the compulsory measures of property preservation function and social defense function.The confiscation and preservation measures of the property involved in the case should be separated from the evidence preservation measures,establish special involved property confiscated preservation measures,and clear the starting conditions,decision authority,decision way,rights relief,etc,to prevent the scope of compulsory measures,lead to improper expansion of the scope of confiscated property.For property confiscation trial procedure,shall optimize the trial procedure,and adopt the high standard of proof,in endangering national security,terrorist activities,black evil forces,drugs,corruption,bribery may produce significant harm or significant illegal interests of special crime types involved property confiscation program,restrictive presumption rules.The confiscation procedure of the property involved in criminal cases should fully protect the legal property rights of the third party,give it the right to participate in the procedure and the status of the subject of litigation,and safeguard the property rights through participation in litigation before the confiscation judgment is made.In general,to improve the confiscation system of property involved in criminal cases,we should be guided by the needs of China’s judicial practice,revise and expand the norms on the confiscation of property involved in criminal cases in the criminal code,and clarify the important entity issues of confiscation,so as to adapt to the development trend of property right protection by criminal law.The perfection of the confiscation of property involved in criminal cases should adopt the double approach of combining entity and procedure.At the substantive level,we should reconstruct the legal status of the criminal property involved in the confiscation of the criminal sanction system,and take it as the third track of the criminal sanction system besides penalty and security measures.On this basis,the substantive rules of confiscation of property involved are reconstructed,the concept system of confiscation is unified,the vague terms such as recovery and ordered return and compensation are deleted,the collection system as an alternative measure to confiscation is introduced,the scope of the special confiscation system not based on conviction is broadened,and specific suggestions for law revision are put forward.At the procedural level,in view of the poor connection between the criminal substantive law and the procedural law involved in China,it is necessary to deal with the supporting connection between the substantive law and the procedural law,and clarify the boundary between the subject and the disciplinary measures,the subject and the authority of the punishment,the applicable litigation stage and the legal supervision.Only when the physical rules are sufficient and the procedure is standardized and orderly,can the value goal of the confiscation of the property involved be truly realized.