| Booty is an important part of the property involved crime, and its cognizance and disposition not only influence fighting against crime, but also involve the protection of citizens’ lawful property rights. But there is no specific provision concerning the meaning and range of booty in the existing laws and regulations in our country. Also, there is no uniform standard for determining and disposing booty in the judicial practice, causing the phenomena of violating the lawful property rights and interests of the parties or indulging crime. In addition, there are differences about the definition, the legal characteristics, the disposition of booty in academia. So far, most scholars only pay attention to the research on disposing booty, neglecting the study of cognizance. However, accurate cognizance of booty is the basis to deal with it. Neglecting the study of its determination will inevitably affect the scientific and impartiality of its disposition.This thesis centers on the concept of booty, the principle of cognizance, the subject and procedure of cognizance, cognizance of specific scope, combined with the existing dispute problems and difficulties that are discussed in theory and judicial practice, in order to make academic points which comply with the legislative spirit and theory of law, so as to better guide judicial practice.This thesis consists of three parts, including introduction, main text and conclusion. And the main text is divided into four parts.The first part is the concept of booty. In this article, the concept of booty is discussed from three aspects. The first part discusses the definition of booty. This part introduces the provisions of criminal law in the history and the theoretical differences in the contemporary era, and puts forward the definition of booty on the basis of comparative analysis. This paper points out that booty is the property achieved by illegality that corresponds the behavioral characteristics prescribed in specific provisions of criminal law, and achieves quite harmful to the society. The second part discusses the legal characteristics of booty. According to the definition of booty, this article analyzes the four legal characteristics of booty. The third part researches the relationship between booty and the other concepts, including the illegal income, tools for crime and contraband.The second part is the principle of cognizance. This thesis in this part researches three principles of cognizance, including the principle of due process, the principle of proportionality, the principle of discrimination. In addition to the definition, origin and development of these principles, this paper introduces the specific requirements of these principles in the cognizance of booty. The principle of discrimination in this paper is aimed at the cognizance of ambiguous booty. In a separate crime and general joint crime, the principle of presumption of innocence should be followed, but in organized crime cases, the property which cannot be proved to be legal, should be considered to be booty.The third part is the subject and procedure of cognizance. In view of the theoretical differences and confusion in judicial practice, this paper points that only the courts have the right to determine the nature of booty. Finally, considering the problems and defects in the procedure for cognizance of booty and the direction of reform of criminal proceeding, this paper puts forward the establishment and perfection of relevant systems in the procedure for cognizance of booty, mainly including perfecting the trial system, perfecting the evidence system, perfecting the system of the parties, perfecting the independent legal status of the victim, perfecting the relief mechanism.The fourth part is the cognizance of specific scope. In this section, combining the divergences and puzzles in academia and judicial practice, this paper analyzes the scope of booty. This paper, starting from the connotation of booty, and considering the particularity of booty which is crime object, specifically points out that the real estate, property interests, fruits of booty, dead bodies, network virtual property, tissues and organs divorced from bodies can become booty, and indicates that substitutes for booty can become booty when there is no loss of identity. In addition, this paper distinguishes booty in individual crime from which in organized crime, researching the relationship between booty in organized crime and lawful income. This thesis believes that the booty one or more persons of criminal organizations gain by illegal behaviors outside of the organized crime, does not belong to the booty which achieved by organized crime. And the lawfully earned income of criminal organizations cannot be considered booty. |
