On Forfeiture In Chinese Criminal Law

In China,the criminal law regulate the general forfeiture and the special forfeiture,embodied in article 59 and article 64 of the criminal law respectively.The general forfeiture usually identified as a kind of punishment, but the nature ofr special forfeiture is controversial.The author considers that just as general forfeiture,the special forfeiture makes negative evaluation to crime,it ought to be as one of the types of punishments.No matter from the point of view for the nature and function penalty,or from the status of special forfeiture in criminal law system, special forfeiture has the essential attribute of punishment.Our current criminal law only makes a rough rule in article 64,neither explains the nature of criminal forfeiture nor clears the scope of the object, and also not makes detailed provisions for the special forfeiture,it leads to academic debates and applicable confusion in practice.At the same time,although the general forfeiture has a long history in our country,but with the development of social economy,the general confiscate is also exist many problems to be solved.Therefore, this paper discusses the characteristics and the basic principles from the concept of general forfeiture and special forfeiture.And on the premise of both of them are punishment measures, this paper illustrates the difference between them.From the point of the provisions of the law, the difference between general forfeiture and special forfeiture is the scope of application.But China’s current criminal law does not rule the confiscate object clearly, and there has not any detailed rules on the application of the special confiscation, thus lead to the academic debate and applies chaos phenomenon in practice.So the basic premise of understanding and applying accurately both of them is to define the scope of property,proceeds of crime,the personal properties used for committing the crime and contraband.For the property of general confiscation,the author considers that it refers to the individual propety in accordance with the law and the others cannot claim,its includes not only the tangible property, but also include the intangible property rights.Then the author analyzes the three objects of special forfeiture.First,the illegal income should be identified as proceeds of crime.Secend the author analyzes the relationship between the proceeds of crime and the third party,and dessertates the principle of presumption. For the personal property used for committing the crime,the author explores from two aspects of its relationship with the crime and the crimer.And for contraband,the section mainly discusses its time for maintaining and the basis for the confiscation of contraband goods.Abroad,the vast majority of the capitalist countries have abolished the general foefeiture and stipulate the special forfeiture as a punishment.At the same time only small number socialist countries shall be maintained on the basis of the change.As for this trend, the paper has carried on the reflection:just like death penalty,the general forfeiture will be abandened by history.However in our country,the general forfeiture should be abolished step by step.Meanwhile, our law should improve the system of special forfeiture as soon as possible,and make it effectively play the role of the punishment.