Discuss The Completion Of Our Country’s Special Confiscation Procedure Of Illegal Income

The special procedure of confiscating the illegal income in China is about the criminal confiscation, which is suitable to the coexistence of civil with criminal responsibility, the coexistence of the case that is independent of criminalization but is dependent of the criminal fact, and the coexistence of the triangular trial structure with the line trial structure. These coexistence features determine the complexity and multiplicity of this special procedure. The present article has mainly analyzed the four aspects about this confiscation procedure, such as the legitimacy basis, the extraterritorial legislative model, the confiscation problems and some improvement suggestion. Starting from the theoretical view of fighting criminals and human rights protection, this paper analyzed the extraterritorial legislation pattern and deeply analyzed the current problems of this procedure by using comparative research and empirical research methods. Based on these analyses, we tentatively offered some suggestion to improve this special procedure of confiscating the illegal income.Firstly, we analyzed the legitimacy basis of this special procedure of confiscation of illegal gains. The legitimacy basis consists of the value of the law, the value of the social order, the avoidance of criminal benefit, and the crime prevention. Secondly, through comparing the three different extraterritorial legislation modes, we analyzed the characteristics of these legislation modes and its reference significance reference for China. Thirdly, according to the problems of our current confiscation procedure, we analyzed these problems one by one. With respect to the scope of application, we referred to the judicial application and found that the scope of the application is irrational. With respect to the jurisdiction of the court, according to the Criminal Procedure Law and relevant judicial interpretations, we proposed the jurisdictional confusion problems. With respect to the identity of people in the litigation issues, we proposed the defect of the case that people cannot participate in the proceedings effectively for the perpetrator close relatives and the litigation identity of the original defender after the death of the perpetrator. With respect to the problems of evidence system, we found the ambiguity of the objects of proof, the irrationality of the distribution of evidential burden, and the harshness of the standard of proof. With respect to the right protection of perpetrators, we indicated the inadequacy of protection for perpetrator’s agency rights, the irrationality of the court hearing, and the defect of the opposition privilege. Finally, through deeply analysis and discussion, we tentatively proposed some reasonable improvement suggestion, such as expanding the scope of the current confiscation procedure, confirming the jurisdiction of the Intermediate People’s Court, confirming the identity of litigant participants, improving the proof system, confirming the range of proof objects, employing the “binary proof” standard for the interested parties, improving the way of legal aid and improving the opposition privilege of defendant.