On The Application Of Confiscation Of Illegal Gains In Administrative Law

The confiscation of illegal income in the administrative law,together with the confiscation of illegal property and fines,constitutes the three statutory property penalties in China.According to the author’s search results on the website of no litigation cases,market regulation is the most frequently used field for confiscation of illegal income,and 74 percent of the current confiscation of illegal income is made in the field of market regulation.The forest public security makes the public security management punishment and the land planning bureau makes the land planning administrative behavior also involves this administrative behavior more.On the whole,according to the search results,there are 20064 cases of confiscation of illegal income from administrative causes and 5,794 cases of administrative law.However,although confiscation of illegal income has a very high application rate in the administrative management of our country,it still faces serious drawbacks such as lack of clear concepts,diverse recognition standards,disordered calculation methods,and lack of more authoritative and systematic legal interpretation.These drawbacks are directly and obviously reflected in legislation,law enforcement and judicial field.At the legislative level,it hinders the preciseness and science of our administrative legislation.At the level of law enforcement,there are difficulties in identification and calculation,which drag down the efficiency of administration;At the judicial level,add the difficulty of correct judgment.Therefore,this topic focuses on the application of confiscation of illegal income,and tries to clarify the judgment standard and legal attribute of this behavior as a breakthrough,so as to guide its application in practice.Specifically,in terms of concept,confiscation of illegal income is an administrative act of confiscating illegal income and turning it over to the state Treasury.In terms of judgment criteria,the existing "income theory" should be abolished,and the "profit theory" should be unified,that is,when calculating the specific amount of illegal income,the illegal income should be taken as the base,minus the reasonable expenditures and taxes already paid.In terms of legal attribute,confiscation of illegal income cannot achieve the deterrent effect that property penalty should achieve,so it should not be continued to be regarded as administrative penalty.At the same time,confiscation of illegal income is not consistent with other existing legal concepts such as administrative enforcement,order to correct or order to restore the original state.For the above reasons,confiscation of illegal income should be an independent new administrative act.In the aspect of application,this paper holds that an applicable system should be constructed in the future,which is dominated by fines and supplemented by confiscation of illegal income.At the same time,the hearing procedure should be incorporated into the applicable system of confiscation of illegal income,and the case file exclusivity system should be stipulated to further establish the neutral position of the hearing moderator.Confiscation of small amounts of illegal income should also be subject to summary procedures to be applied on the spot in conjunction with fines and warnings in law enforcement.