Study On The Special Confiscation Procedure Of Illegal Income

On March 14, 2012, the eleventh session of the Fifth National People’s Congressmeeting passed the revision of the criminal procedure law of the people’s Republic of China. It includes a new chapter, the illegal income confiscation procedure of the suspect, the defendant escaping or death cases.This procesure resolves the difficult of confiscation when the defedant is absent and it is important for punishing the crime of corruption and overseas booty pursuit.This paper will clarify the basic concept and program properties first,then discuss on the program from two aspects: entity and procedure,the last part is the development of this program in the international criminal judicial cooperation. The paper includes introduction, text and conclusion, a total of more than 53000 words(including comments) and it is divided into four chapters.The first chapter is the basic theory of this program, including the meaning and property. This chapter does not introduces the background of establishment, the tsignificance and the legislative model because these content should be explored before the legislation.More discussion should be put on how to apply the program after running for a period. Different from the traditional confiscation program,this program will confiscate illegal income without the defendant conviction,but this program is not civil proceedings. Its premise is the start of criminal proceedings and the defendant is clear.It also dealts with the property related to crime.So it is still criminal procedure,but also has its particularity.2 The second chapter is about the entity rules ofthis procedure which main content is to define the scope of confiscation objects. The reason to discus the scope of confiscation objects is that each object need to follow some special rules when confiscated. Previous research studies for the confiscation of objects is scattered and vague.If we can’t study these special rules deeply, extreme phenomenon will appear easily : ‘a package of confiscation’ or ‘escape confiscation’. The study of confiscation rules is of great significance to grasp the limit in practice. The original holders’ s qualifications should be considered when confiscate the contraband, if the originnal possession is lawful,then it is more appropriate to return as the victim’s legitimate property rather than confiscated contraband. When confiscating the personal property for crime,the direct or close connection between the property and the behavior should be identified first. For the purpose of completely depriving the proceeds of crime, the object should not be limited to belong to the defendant only. When the other people know the object was used for crime, the object should also be confiscated even it doesn’t belong to the defandant.For the third people’s loss, some compensation can be paid to them combined with the cases. When confiscating the illegal income,not only the direct property from crime should be confiscated but also the proceeds change from the direct property.Only the third people are unaware and pay fair consideration,otherwise,the illegal income should be confiscated even belonged to the third people.In addition,when the ordering to pay conpensation is dummy in the practice,it is essential to establish the quasi confiscation.It is in favor of making no one benefit from crime.It also provides a solution to expand the preservation range to the defendant’s legal property.The third chapter will discuss application of this program.The first section is the applicable conditions.This program applys to bribery and corruption crimes and crime of terrorism. Bribery and corruption crimes should inculde all the charges in the third chapter in the specific provisions of criminal law but should not exend to other major crimes.Under the current system in our country,it is necessary to make the person who is dead in double designation included in the scope of this program because double designation has become pre procedure when handling the bribery and corruption crimes.This will meet the purpose of punishing corruptions crimes. The second section introduces the start program of this program.The only legal entity of application is the procuratorate.The third section is content of trial program, mainly introducing the participation of the interested party andprovement.The interested party include the defendant’s close relatives and the person who apply for ownership of the confiscated property.The close relatives can not only apply for the ownership of the confiscated property but also advocate objection to the prosecutor’s accusation.The object of proof include crime facts,escape or death condition of the defendant and the substantial connection between confiscating property and crime. In the proof of the facts of crime should be from the entity rather than procedure. In the allocation of the proof burden,the prosecutor should prove crime facts and the condition of defendant escape or death.When proving the connection between conficating property and crime,the burden of proof can transfer from the prosecutor to the interested party in special circumstance.The interested party should prove the confiscating property is legal.When proving the crime facts,the standard of proof is full enough.When proving the substantial connection, preponderance of the evidence is suitable. The fourth section relief program introduces the handling objection after the suspect is in custody.The prosecutor will assume the indictment function and play the role of supervisor.The fourth chapter will introduce overseas booty international judicial cooperation. This program open up a new path in the overseas booty.It is important for the anti-corruption work in solving difficulties of high cost,inefficient and legal obstacles. Of course, our overseas booty mechanism is not perfect. Along with the increased needs of international cooperation in the overseas booty work, we should gradually establish a sharing mechanism to get mutual benefit with other countries.