On The Nature Of The Act Of Committing The Crime Of A Huge Amount Of Property With Unknown Sources

The crime of huge amount of property with unknown source has met with a lot of questions since it was stipulated in the criminal law.The disputes mainly focus on the nature of the execution behavior,the attribution of the burden of proof,the way of the establishment of voluntary surrender,the starting time of the limitation of action,the power of judgment and so on.Among them,the core problem is the nature of carrying out the behavior,and it is helpful to clarify the nature of carrying out the behavior to solve the other problems mentioned above.On the practice of this crime behavior nature,this paper support conforms to punish state functionaries take bribes crime to "hold",but in the "hold" think "ordered to explain the" only for the point of view to improve the procedural regulations and legal presumption theory is introduced and proved that logic,put forward the safeguard of the right to defence on part of the defendant to help accurately the criterions for the conviction of "can rebut the presumption of holding said",supplemented by theory,data,case demonstration of ways such as its legitimacy and rationality.This paper holds that "rebuttability" in the "rebuttable presumption of holding" is not only the limitation of the legal presumption,but also the emphasis on the "rebuttal" procedure.The basic structure of rebuttable legal presumption should be as follows: the existence of basic facts → proof of basic facts → preliminary confirmation of presumptive facts according to relevant rules → allow the defendant to refute the preliminary presumptive facts → reverse proof of the rebuttal content of the defendant by the public prosecution → judgment of the establishment of presumptive facts.In this structure,the rebuttal of the defendant when he is "ordered to explain the source of property" does not have the final effect of decision.If the defendant makes rebuttal,the public prosecution should bear the burden of proof to prove that the rebuttal of the defendant cannot be established.The proof of the public prosecution shall be in opposition to and in the same place as the rebuttal of the defendant.If the public prosecution has not proved or completed the proof of the defendant’s rebuttal,the court shall not support the charge of the public prosecution.In this way,it can not only play the role of "holding the opinion" in punishing the crime of corruption,but also protect the defendant from illegal prosecution with "rebuttable legal presumption".There is tension,not vertical.While advocating "rebuttable presumption of possession",this paper holds that the burden of proof of this crime should be borne by the judicial organs,and the burden of proof borne by the defendant should be limited and interpreted.On voluntary surrender,this crime should encourage voluntary surrender;As for the limitation of action,the limitation of action for this crime should be calculated from the date when the doer actually controls the huge amount of property whose source is unknown.As for the juridical power of this crime,if the source of property is found to be legal after the judgment becomes effective,the judgment shall be changed,but the state shall not make compensation.