Flectiongs On Some Questiongs Of The Crime Of Holding A Huge Amount Of Property With Unidentified Sources

The crime of holding a huge amount of property with unidentified sources since its creation has been controversial in criminal law fields which can be deemed as the most controversial one in the criminal law. Over 10 years of judicial practice, the setting up of this crime has played a positive role in curbing corruption and purifying society, but the flaws in the legislation should not be overlooked which made this crime in a very embarrassed situation and sometimes it become a"protective umbrella"for many criminals to evade judicial punishment. The disputes and flaws in the crime legislation and judicial practice are worthy of serious study. This paper mainly deals with the following three aspects:The first part of the dissertation objectively re-positions the crime of holding a huge amount of property with unidentified sources."The stating action"included in the objective elements or not is vital to distinguish burden of proof for the accused and the defendant. If"the stating action"is not of objective elements, the defendant does not need to assume the possibility of losing the lawsuit when the accused could not rule out holding a huge amount of property with unidentified but legitimate sources and the burden of proof when the compositive elements is hard to define its true or false. This part in the exposition, the first of the major omission and said that asnonfeasance, do not think that as not appropriate, because they do not say that as a"statement"for the objective of positioning elements of the existence of too many defects in the Constitute a criminal offence was originally used to determine the establishment, therefore, constitute a crime should have the uniqueness of uncertainty. However, the"explanation"for criminal acts explained the objective elements of a crime makes the establishment of a serious criminal suspects who rely on the"statement"acts of this nature are uncertain of the impact of a crime makes the uncertainty at the same time , which lost its position criminal function. At the same time due to the"statement"explained the objective elements also make it a criminal breach of the Code of Criminal Procedure on file procedures. Because the Code of Criminal Procedure requested file is the precondition for the fact that the crime must have occurred, if the file of the crime that had not occurred, then the legitimacy of its file? Therefore, in this last part of the"statement"acts defined as entities rather than procedural elements of the Elements, in other words,"statement"is not a crime of the objective elements of the content.The second part mainly focused on the crime runs counter to the principle of presumption of innocence. Because the principle of presumption of innocence proven guilty directly to the allocation of responsibilities to the prosecution, if the crime of the principle of presumption of innocence is a breakthrough because it will mean that the responsibility to prove that (objective Burden of Proof) transfer to the defense. Therefore, this part of the main reasoning of the distinction between presumption of guilt and the presumption that a huge amount of property crime is unknown source of substantive law on the presumption of guilt rather than inference presumption, and presumption of guilt of a procedural law.The third part is the core of this paper. The first part introduced in the procedural law has proved that the dual meaning of responsibility. Proved that the dual meaning of the responsibility that has two implications, the first layer of significance is the meaning of the responsibility to provide evidence, which is commonly used by Chinese academics burden of proof; results of the second meaning is lost on the significance of risk responsibility, civil said make an objective that responsibility. In the present paper in order to avoid the prevalence of academia and the onus of responsibility for the use of that confusion, the burden of proof means that the responsibility to provide evidence to prove that the responsibility refers only objective responsibility. Secondly, the part also introduced in the theory that the allocation of responsibilities. Germany and France, mainly in the form of the distribution theory (that norms), and common law theories on the distribution of the substance. That the allocation of responsibilities of the main problem lies in the fact that certain elements who carried out the burden of proof issue. Said that in accordance with the norms and regulations to carry out that the allocation of responsibility and common law stands, as some social values such as: fair, the evidence of the distance that the allocation of responsibility. In this paper, in addition to that in criminal proceedings in accordance with the norms of criminal responsibility to carry out that the distribution, can be supplemented with real proof of liability standards. In a huge amount of property of dubious origins, the more recent evidence from the defense, we should bear certain responsibility to provide evidence. Finally, in a huge amount of property of unknown origin that the crime of the specific allocation of responsibilities, there are four theories: the first is shared said that the prosecution and the defense that shared responsibility and the second is that the prosecution assume that it the prosecution to prove responsibility; and the third is said that the reversal of the defendant in a huge amount of property of unknown origin should assume that the crime of responsibility, it is a responsibility that the inversion, which is the traditional theory of criminal evidence that the defendant does not bear responsibility exceptions; fourth is the right to a defense, that the defendant provided evidence that their property is the source of legitimate act of exercising the right to defend the accused, rather than fulfil that responsibility. Shared that both sides so as to the nature of the responsibility confused. And the reversal of proof in civil proceedings said that the move to the concept of criminal proceedings, does not take into account the special nature of criminal proceedings, and the Burden of Proof in Criminal Proceedings (objective Burden of Proof) is not carried out inversion. And the right to defend the right to a defense that has even more made confused and the burden of proof that there are similar places, but the concept of the right of defense than the burden of proof is broad in scope, the exercise of the right to defend the accused sometimes when not fully fulfilling the responsibility to provide evidence, that the onus of proof is different. In this crime, if the defendant acts as a note is a right of defense, it means that the defendant does not carry out the"explanation"does not need to bear any responsibility, because the right to a defense as a right, exercise can also do not exercise, and give up the right to a defense and will not necessarily affect the criminal liability of the parties. In this crime, the parties do not"statement"would clearly affect the criminal liability of the parties, the right to a defense that is not right. In addition,"statement"in front of the first part has been defined as a procedure rather than a crime and objective elements of the Elements, in other words,"statement"is in the course of judicial proceedings. Therefore, in this part of the explanation"statement"the specific meaning of the basic agreement of the four judicial interpretations of the meaning, but to"exclude legitimate source"meaning to these four amendments to the"exclusion from legitimate sources"dominates four meanings. Because removes originates the legitimate work is needs the prosecution to complete, this has solved the prosecution and the defense evidence burden weight unbalanced question. And then proposed that the conviction the responsibility still had the prosecution to undertake, what but the defense undertakes provides the evidence the onus probandi. Simultaneously has differentiated the onus probandi inversion and the proof responsibility inversion, thought that in the criminal prosecution, proved the responsibility cannot invert, simultaneously the onus probandi cannot invert. But the onus probandi may shift, in the vast fortune originates in the unclear crime, the defendant"explained that"behavior is only the onus probandi, in controls debates between both sides to carry on the shift one kind of performance. From this draws the conclusion, the vast fortune originates is not in the procedural law guilty estimation which the unclear crime uses, but is in the legislative deduction estimation.